ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00015336
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 01/02/2019
Workplace Relations Commission Adjudication Officer: Caroline McEnery
In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute(s).
The Complainant commenced employment with the Respondent on 01 April 1997. The Complainant was employed as a Seasonal Production Operator and has 22 years’ service with the company. The Complainant was given a final written warning due to an unauthorised absence on 15 February 2018 when the Complainant left the site without permission or authorisation. This is the matter in dispute in this case.
Summary of Complainant’s Case:
On 12 February the Complainant was scheduled to work on the day shift. The Complainant stated that he was not able to travel to work due to adverse weather conditions. The Complainant stated that he lives up a steep hill which on that morning was covered in ice and snow.
The Complainant reviewed the roads regularly that morning to see if they thawed to allow him to drive down the hill safely. The Complainant states that two miles down the hill the roads were cleared from snow but not from the Complainant’s house down the hill. The Complainant did not attend work on that day as he felt it was too dangerous to drive on the icy road.
The Complainant attended work the following day as the bad weather conditions had cleared. He explained his absence again to his Line Manager on his return.
On 15 February 2018, the Complainant’s Manager, approached the Complainant on the factory floor and questioned him as to why he was not at work on 12 February. The Complainant again explained his reasons for being absent. However, the Complainant’s Manager expressed her disbelief with the Complainant’s response and began scolding the Complainant by the manner in which she spoke to him.
The Complainant left the area and became upset. The Complainant returned to his Manager, who was then in conversation with the Production Manager, and informed her that he was very upset and needed to go home. The Complainant proceeded to the Locker Room to change to leave the plant. The Complainant’s Manager followed the Complainant and told him he needed to follow procedure and go to the Nurse (Occupational Health) on site before he could leave the plant. The Complainant went to the Nurse and informed her of the events which had unfolded, he was very upset while talking to the Nurse. Nurse could see that he was visibly upset and asked him to sit down and have a drink of water but the Complainant said he couldn’t as he needed to get out of there and he left the plant. The Complainant telephoned his Line Manager when he got home and informed him he had left the plant and was at home. The Complainant attended his own GP and was certified unfit for work. Mr Browne remained certified unfit for work for a period of 2 months following that date.
The Complainant was called to an investigation meeting regarding an alleged altercation with your manager and subsequent unauthorised absence from the site immediately following on from the alleged incident, by way of letter from the Powder Production Manager, dated 15 February and the Complainant attended on 16 February.
The Complainant received a letter dated 06 March 2018 inviting him to attend a disciplinary hearing on 12 March 2018 by the Factory Manager.
The outcome of the disciplinary hearing was issued to the Complainant by way of letter dated 30 March 2018. This letter confirmed a final written warning on his file for a period of 6 months. The reason for the disciplinary action was for unauthorised absence on 15 February.
The matter was appealed to the Respondent, but the appeal was unsuccessful.
The Union states that the sanction of final written warning was unwarranted in this case. The employer relied on Clause 22 of the Employee Handbook, Disciplinary Procedures. However, we contend the employer has taken
- f) Absence from factory premises without permission
- j) Leaving the job or Department without permission, before the allotted time, at official breaks, or finishing time completely out of context.
The Complainant informed 3 people he intended leaving the factory on that day, which included 2 managers. The Complainant then informed his Supervisor when he arrived home by telephone. However, the employer imposed the penalty for leaving the premises without permission.
The sections of the policy the employer relied upon to penalise the Complainant were intended for a different purpose.
The Complainant was visibly upset on the day and informed 3 people including the Nurse that he needed to go home, he was too upset to continue working. Just because these people did not say, It’s ok to go home, is why the sanction was imposed.
The Complainant did not go home without informing management of his intentions, which is what we contend section F and J of the policy refer to.
The Respondent sought to investigate the matter on the same day in which the Complainant left the factory to go home and to attend his own GP following the incident with his Manager. However, there was no sanction imposed regarding this incident. We contend this was due to the manner in which the Complainant’s Manager spoke to the Complainant. However, the company sought to protect the Complainant’s Manager and discipline the Complainant for something else in order to take the attention away from the Complainant’s Manager’s behaviour.
There was no investigation report issued. Notes were taken which confirmed inconsistencies regarding the evidence submitted by the witnesses.
In conclusion, the Complainant is requesting the disciplinary sanction of the final written warning should be removed from the member’s file and expunged in its entirety under the circumstances and for the reasons outlined above and to summarise the following key points:
The employer did not conduct a fair and proper investigation process.
The disciplinary sanction is unwarranted.
The employer did not take the full circumstances into account and showed no amount of reasonableness in this case.
Summary of Respondent’s Case:
The Complainant was given a final written warning due to an unauthorised absence on 15 February 2018 when the Complainant left site without permission or authorisation. As per the initial letter (and subsequent letters) inviting the Complainant to an investigation meeting (dated 15 February 2018), this is not to be confused with the unauthorised absence on Monday 12 February by the Complainant, where the Respondent informed the Complainant that no action was to be taken in this instance. The Complainant subsequently appealed his written warning which was upheld. This written warning became effective on 30 March 2018 and expired on 30 September 2018, following a period of 6 months.
Following an altercation involving the Complainant and the Complainant’s Manager on 15 February, the Complainant was invited to attend a fact-finding meeting on 16 February at the site in Listowel. The Complainant was made aware of the nature of the alleged incident and his subsequent unauthorised absence in this letter, and the purpose of the meeting. He was afforded all relevant rights, including representation and informed of all outcomes of any potential disciplinary action.
This investigation was carried out by the Production Manager and the Maintenance Manager at the site in Listowel.
In line with the grievance and disciplinary procedure as contained within the House Agreement, and as per guidelines laid out in the Company Dignity at Work handbook, the prevention of Bullying & Harassment policy, the Complainant was invited to a meeting on 16 March 2018 where the nature of the allegation was put to him. He was allowed representation and was accompanied to this meeting by a SIPTU shop steward. This meeting was chaired by the Production Manager, as per Stage 1 of the Grievance Procedure as contained within Clause 21 of the Company/Union House Agreement.
During this investigation, it was established that there had been 2 unauthorised absences in the week beginning 12 February 2018.
In a letter dated 06 March 2018, the Complainant was invited to a disciplinary hearing on 12 March in Listowel, set for 12:30 pm. In this letter, the Complainant once again had the nature of the allegations clearly put to him, he was once again informed of his rights to a fair hearing, his right to representation, and was once again provided with copies of both the House Agreement and the Dignity at Work handbook.
This meeting was chaired by the Factory Manager Listowel as part of a separate disciplinary process.
Having reviewed the evidence as presented to him, and following further interviews as conducted by the Factory Manager, the Factory Manager issued the Complainant with a formal written warning on 30 March 2018. In this letter, the Complainant was informed of his right to appeal, and was provided with all notes from the various disciplinary hearings.
In a hand-written note dated 11 April 2018 the Complainant requested that an appeal into his case be heard.
The Complainant was written to by the HR Manager on 25 May 2018 stating that he would hear the complainant’s appeal on 30 May 2018. The Complainant was once again informed of his right to representation at this appeal hearing and that the appeal hearing would be carried out in line with the relevant procedures. The Complainant was accompanied by a SIPTU shop steward on the date in question.
In a comprehensive response from 12 June 2018, the HR Manager stated that following all the evidence as presented to him, the warning was warranted and should be upheld.
To date, the Complainant has not stated the grounds for his appeal. During the appeal hearing he stated a ‘belief that his actions did not warrant any disciplinary action’ as the reason for his appeal and in the WRC Complaint Form, no further evidence is provided. In addressing the allegation of unauthorised absence, the Complainant stated that he ‘informed’ management that he was leaving the site on the day in question but did not seek permission. All 3 teams, the investigation team, the disciplinary team, and the appeal team all established the indisputable fact that the Complainant did not seek authorisation to leave the site on the day he was rostered to work, and all relevant line managers, when questioned on this, categorically denied giving him this authorisation. The HR Manager sums the matter up adequately in his appeal response.
Furthermore, the Complainant was afforded all benefits of fair procedure, in line with the company’s established policies, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the complaint against him. The Complainant was afforded the right to representation, which he exercised, with various members of SIPTU present at various meetings. The Complainant was further provided with a fair and impartial investigation and disciplinary hearings, at which he was given an opportunity, on every occasion, to respond to the allegation being made against him. All the evidence in its entirety was considered, including the Complainant’s representation, before any decision was made or action taken. The Complainant was also afforded the right of appeal. There were 3 very clear and distinct stages to this process, an investigation stage, a disciplinary stage and an appeal stage, all carried out by independent managers within the organisation. Considering all of the above, the Respondent is firmly of the view that the warning issued to the claimant was procedurally fair in all respects.
Considering the arguments as outlined above, and the documentary evidence provided, we would ask that the Adjudicator find that the Respondent acted in a reasonable manner and dismiss the Complainant’s demand that his sanction of a final written warning be appealed. Furthermore, it is worth noting that the Complainant’s original sanction expired on 30 September 2018.
Findings and Conclusions:
Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.
13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.
(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.
(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—
(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and
(ii) notify the Court of the recommendation.
(b) A rights commissioner shall not investigate a trade dispute—
(i) if the Court has made a recommendation in relation to the dispute, or
(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.
The Complainant does have an obligation to exhaust the internal process before taking the matter to an external source. The Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”. The Complainant has done this in this case.
Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.
In this case the employee left work because of an incident that occurred between himself and his manager. He remained on sick leave for two months after the incident.
The company investigated the matter and subsequently issued a sanction at the time of the incident. However the matter and warning has since expired and is now removed from the employees file. A final written warning is a serious sanction that could have been relied on for further disciplinary action up to and including dismissal. However the employer must follow the rules of natural justice and its own policy and I believe this occurred on this occasion. Whether a first written warning or final written warning should have been applied is debatable however.
I recommend that the findings of the investigation be set aside and that they be expunged from the Complainants personnel records.
I would recommend that the Respondent review its procedures in cases such as this and timeline for making decisions and progressing to the next stage. Delays of this kind are not in the best interest of the parties or the organisation as a whole.
Workplace Relations Commission Adjudication Officer: Caroline McEnery