ADJUDICATION OFFICER RECOMMENDATION
Industrial Relations Act 1969
Adjudication Reference: ADJ-00031476
Parties:
| Employee | Employer |
Anonymised Parties | An Employee | A Public Body |
Representatives | A Representative Organisation | The Human Resources Department |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00042039-001 | 18/01/2021 |
Date of Adjudication Hearing: 04/03/2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This dispute was submitted to the Workplace Relations Commission (WRC) on January 18th 2021 and, in accordance with section 13 of the Industrial Relations Act 1969, the Director General assigned it to me for adjudication. Due to restrictions at the WRC during the Covid-19 pandemic, a hearing was delayed until March 4th 2022. I conducted a hearing on that date, in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the WRC as a body empowered to hold remote hearings. At the hearing, I made enquiries and gave the parties an opportunity to be heard and to set out their positions on the dispute.
The employee was represented by an official from his representative association. The employer was represented by the organisation’s industrial relations officer and he was accompanied by a member of the Human Resources Department.
Background:
This dispute has its origins in the employer’s decision in 2019, to conduct disciplinary investigations into the failure of hundreds of its employees to properly investigate and bring to a conclusion charges against 3,500 young people under the age of 18. The charges against the juveniles ranged from very serious crimes down to incidents of minor criminal damage, public order and road traffic offences. The outcome of the investigations was the issuing of disciplinary sanctions to 768 employees. In July 2019, in accordance with the organisation’s disciplinary regulations, the employee who is the subject of this dispute was issued with an admonishment. This sanction was to remain on his personnel file for three years. This grievance is about the way in which the investigating officer commenced the disciplinary meeting on May 29th 2019, the outcome of the investigation, and how the employee’s concerns were dealt with afterwards. |
Summary of Employee’s Case:
On May 23rd 2019, the employee was notified that a senior officer had been appointed to conduct a disciplinary investigation into his handling of seven incidents involving juveniles and his failure to bring the cases to a conclusion. I will refer to this officer as “the investigating officer.” The meeting was scheduled for May 29th. As he arrived at the meeting with his representative, the investigating officer called out the employee’s name saying, “come in here ‘til I roast you.” At the hearing, the employee’s representative confirmed to me that this was said. If a juvenile offender is to be prosecuted, the employee said that a letter must be issued by the National Juvenile Liaison Office to the local superintendent, directing what action, if any, is to be taken. The seven cases being investigated occurred around seven or eight years before the meeting in May 2019. The employee said that he asked where the letters were, but they weren’t produced. He described the meeting as “dynamic,” with a lot of to-ing and fro-ing on the issues. The employee said that the investigating officer undertook to provide clarification on a number of points that he raised at the meeting; however, no clarification was provided. On June 17th, the investigating officer concluded that the employee had failed to properly manage four of the seven incidents of juvenile offending. On the same date, they both signed a form to acknowledge the sanction of admonishment in relation to the breaches. The employee received formal confirmation of this on July 10th. At the hearing of this matter in March 2022, the employee said that it was unreasonable to expect him to take action with regard to the juvenile cases, when the Juvenile Liaison Office had not issued letters directing what action, if any, was to be taken. He said that, before he listened to his version of events, he felt that the investigating officer had already come to a conclusion regarding the outcome of the meeting. The organisation’s disciplinary regulations provide that an appeal of a disciplinary sanction must be submitted within seven days of the sanction being issued. The employee said that he consulted a solicitor, who wrote to his employer on July 9th 2019 seeking disclosure of documents. On July 10th, the solicitor wrote to request a stay on the timeframe to submit an appeal, until he was provided with the documents requested. There was no response to the solicitor’s letters. On August 6th, the person who appointed the investigating officer, “the appointing officer,” informed the employee that the deadline for an appeal had passed, but he enquired if he wanted to have the matter reviewed. In mid-2019, there was a change of personnel and a new appointing officer took over responsibility for the investigations in the employee’s region. On November 22nd 2019, the employee and his representative met the new appointing officer. The employee said that he told the new appointing officer that, by issuing him with an admonishment, the investigating officer had carried out his threat to “roast” him. He said that he told him that he felt threatened by the comments and that the outcome of the meeting was a foregone conclusion. The appointing officer’s view was that the employee had accepted his punishment and that he had no grounds to appeal. On December 5th 2019, the employee said that he requested a review of what had occurred at the meeting on May 29th 2019 and the outcome of the admonishment. Some time afterwards, on a date unknown, the employee said that he received a reply saying that he would not be permitted to appeal against the disciplinary sanction, because “to do so would be ultra vires.” At the hearing of this matter, the employee provided a copy of a letter dated January 23rd 2020 which he sent to the new appointing officer. His letter consisted of seven questions. In the first three questions, he sought answers to what happened to the correspondence from his solicitor in July 2019. In a fourth question, he asked who was appointed as acting appointing officer arising from the change of personnel in August 2019. A fifth question was concerned with the criterion applied to the decision that his complaint was “ultra vires.” In a sixth question, he asked what action was proposed in response to him being threatened by the investigating officer and finally, he asked when the issue was brought to the attention of a more senior officer with responsibility for Internal Affairs. On February 12th 2020, the employee said that he sent an email to his superior officer setting out his concerns that his complaint wasn’t being taken seriously. In a response on February 24th 2020, the new appointing officer said that the disciplinary process concluded when the employee signed the form to acknowledge the sanction of admonishment. However, he said that he would report the alleged threat of a “roasting” to an assistant commissioner and seek the appointment of a chief superintendent from a division outside that in which the employee works to enquire into it. In March 2020, the employee heard that the investigating officer was planning to retire and he made enquiries regarding what was happening with his complaint about how he was treated at the meeting of May 29th 2019. In the end, the investigating officer remained until June 2020. On March 5th 2020, he received a reply from a clerical officer, who, on the instructions of the appointing officer, advised that his correspondence was forwarded to the assistant commissioner for the Eastern Region for a chief superintendent to be appointed to investigate the matter. In August 2020, the employee was informed by a superintendent that she had been appointed by the assistant commissioner to conduct a fact-finding enquiry into what occurred at the meeting on May 29th 2019. He said that he raised with the superintendent, the fact that, by that stage, August 2020, the “clock had run out,” because the investigating officer retired in June. He said that the superintendent’s job was not to investigate his complaint, because it was too late. He said that she was brought in because the clock had run out. On January 7th 2021, the employee received a letter from the appointing officer informing him that he had received the outcome of the fact-finding enquiry. He said that the outcome was that neither the employee or his representative complained about the “roasting” comment at the time it was alleged to have been said, or at any stage afterwards. On January 18th, this grievance was submitted for adjudication to the WRC. On January 29th, the employee requested a copy of the report in which the superintendent set out the conclusions of her fact-finding enquiry. He did not receive a reply. Summarising his position regarding this dispute, the employee said that he has worked in the organisation for 23 years and to be brought into a disciplinary investigation and greeted with the comment, “come in here ‘til I roast you,” was shocking. He said that he was asked to produce a report about seven juvenile cases and then he was under investigation. He said that he has an issue with the process from start to finish. He was advised to appeal against the admonishment, and then he was informed that his appeal was “ultra vires.” The admonishment has been on his personnel file since July 2019 and will remain there until July 2022. If he applies for a promotion, the admonishment is disclosed to the recruiting manager. When I asked him what outcome he expected from this process, the employee said that he wants the disciplinary record expunged. On behalf of the employee, his representative said that thousands of employees were investigated and that there was a sense of having to get the job over and done with. He said that he thinks the investigating officer had a “blasé” attitude to the investigation. He said that the fact that the investigations took place was evidence of a systemic failing which has now been resolved with an update of the organisation’s record system. |
Summary of Employer’s Case:
In his submission on behalf of the employer, the industrial relations officer (IRO) set out the statutory background to the organisation’s disciplinary regulations, and the roles of the personnel at each stage. The regulations provide a code of conduct for employees and suspected breaches of the code of conduct are investigated by officers appointed in accordance with the regulations. An appointing officer appoints an investigating officer to conduct an investigation and to reach a decision regarding the appropriate penalty, if a penalty is to be imposed. The penalties for breaches of conduct include dismissal, reduction in rank, temporary reduction in pay, reprimand in the form of an admonishment, caution and advice. An employee issued with a sanction has seven days to request a review of the decision. Following a meeting on May 29th 2019, which the employee attended with his representative, the investigating officer found him to be in breach of four of the seven allegations of breaches of conduct that he was questioned about. Each of the allegations concerned the employee’s handling of cases involving offences committed by juveniles. The sanction was an admonishment in respect of four breaches. The regulations provide that an employee has seven days to apply for a review of a disciplinary sanction. The grounds for a review are set out in the regulations as follows: (a) Specified provisions of the regulations were not complied with. (b) The decision is not justified having regard to the information given by you or on your behalf during the interview. (c) All the facts were not ascertained or disclosed / were not considered, or were not considered in a reasonable manner. (d) You were not given the opportunity to answer the allegation. (e) The disciplinary action imposed is disproportionate in relation to the breach of disciplinary concerned. If an application for review is not received from you within the stipulated 7 day period, the disciplinary action shall be imposed. On July 10th 2019, the employee was given a copy of the result of the disciplinary interview that was held on May 29th, confirming the sanction of admonishment in relation to four breaches of conduct. He had signed this document on June 17th. He was also given a notice signed by the appointing officer, confirming the sanction issued, and the grounds set out above, under which he could request a review within seven days. The employee signed this notice on the day it was issued, July 10th 2019. The IRO noted that the employee did not request a review of the sanction within seven days, or at any time afterwards. The employee alleges that the investigating officer made certain remarks before the meeting of May 29th. However, before the meeting properly commenced, or afterwards, neither the employee or his representative raised this as a matter of concern. It was only in November 2019, when he met the new appointing officer, that the employee raised his concern about what was said. The organisation has a robust policy document for dealing with disrespectful behaviour of employees towards one another and the IRO said that it was open to the employee to request an investigation of this claim of inappropriate behaviour. No submission about the “roasting” comment was made under the heading of the policy. On November 22nd 2019, when the appointing officer was appraised of the alleged threatening remark, the IRO said that, in the absence of any formalised or supporting documentation, it was referred to the assistant commissioner of the employee’s region to establish the merits of the claim. A fact-finding enquiry was then conducted by a superintendent. The employee did not submit a complaint about how he was treated, and a formal investigation was not carried out. Referring to the disciplinary regulations, the IRO said that the document is a statutory instrument that provides for appeals against sanctions. As an organisation employing large numbers, he said that it is important to comply with the regulations, including the timeline for appeals. The IRO asked me to consider the employer’s position in light of the failure of the employee to submit an appeal regarding the internal disciplinary procedures not being adhered to or the outcome of the investigation and the sanction issued, or any other claim made regarding the conduct of the interview. The IRO requested a recommendation that the matter be considered as closed. |
Findings and Conclusions:
I have considered the grievance submitted to me for investigation and I have listened carefully to the statements made by the employee and his representative. I have also heard the response of the employer’s representative and I have reached the following conclusions: I am satisfied that the “come here ‘til I roast you” remark was made by the investigating officer at the opening of the disciplinary meeting on May 29th 2019. It is my view that this remark is indicative of a total lack of respect for the process and was an effort by the investigating officer to minimise the seriousness of the issues being addressed. To approach the disciplinary investigation in this manner was disrespectful of the employee and of the organisation itself, in its efforts to address failures in the management of young offenders. Having been greeted with this remark, I find it odd that the employee and his representative went ahead with the meeting, unless at the time, they didn’t find the remark particularly repulsive. I think they would have been within their rights to refuse to proceed and to immediately report the incident in accordance with the organisation’s policy on working together to create a positive environment. On June 17th 2019, despite the disgraceful start to the meeting on May 29th, the employee signed his acknowledgement of the sanction of admonishment, which he asserts, was a foregone conclusion. At the hearing, he said that he acknowledged the sanction, but that he didn’t accept it. The distinction, in my view, is not significant. On July 10th, the employee signed a copy of the appointing officer’s report, notifying him of his right to appeal within seven days. He did not appeal, but he instructed a solicitor to write to his employer to ask for a stay on the time limit to appeal. It is my view that the employee had clear grounds to appeal the outcome of the disciplinary investigation. He did not require the assistance of a solicitor to submit an appeal, as he was represented by an official from his representative association who was a witness to what occurred. Even without any assistance, if he was serious in his objection to the outcome of the disciplinary investigation, it would have taken less than half an hour to submit an appeal, on two of the five grounds for submitting an appeal; (b), that the decision was not justified or (c) that the relevant facts were not considered in a reasonable manner. Alternatively, or, in addition to appealing against the disciplinary sanction, the employee could have make a formal complaint about the conduct of the investigating officer. No document was produced that gave any indication that a complaint was submitted, although the employee said that he received an acknowledgement that he made a complaint. This “acknowledgement” is a reference to an email dated March 5th 2020 from a clerical officer in the divisional office. I am satisfied that this was a response to an email from the employee on March 4th in which he asked what was happening with his complaint. The clerical officer advised that the employee’s correspondence about the conduct of the investigating officer had been forwarded to the assistant commissioner to be investigated by a chief superintendent. The chief superintendent carried out a fact-finding exercise and concluded that a complaint was never made. I agree with this conclusion. On November 22nd 2019, six months after the incident, the employee informed the appointing officer about the conduct of the investigating officer on May 29th 2019. He did not make a formal complaint. Conclusion The opportunity to appeal or to request a review of a disciplinary sanction is an essential component of the organisation’s disciplinary regulations. The facility of an appeal permits the employee who is under investigation to highlight the possibility of bias or unfair treatment, or to ask for new information to be considered. It is a critical feature of the process that the timeline is adhered to, otherwise, it would be impossible to bring matters to a conclusion. Two weeks after the investigation that took place on May 29th 2019, the employee signed a document to confirm his acknowledgement of the decision of the investigating officer that he should be issued with an admonishment. Six weeks later, he signed a document to again acknowledge the sanction. The form that he signed provided details of his right to appeal against the sanction, but he did not submit an appeal. At the hearing, the employee said that he was waiting for his solicitor to get a reply to the letters he sent on July 9th and 10th. A month later, on August 6th 2019, he received a letter from the appointing officer reminding him of his right to appeal. On the same day, he informed a clerical officer in the divisional office that his solicitor wasn’t representing him any longer. Even at that late stage, it appears that the organisation was open to hearing an appeal. I have already stated my view that the conduct of the investigating officer at the meeting on May 29th 2019 was unacceptable and disrespectful. The employee provided no credible explanation why he proceeded with the meeting. The disciplinary regulations are designed to provide an opportunity for an employee to challenge any unfairness that emerges in the course of the process, and the employee did not use that facility. He did not raise a complaint under the heading of any policy on respect or harassment at work. In the absence of an appeal, or a formal complaint, and, as the investigating officer retired in June 2020, it is my view that my enquiry should bring this dispute to an end. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the parties consider this report to be the conclusion of this dispute. I further recommend that the admonishment placed on the employee’s file in July 2019 be removed with effect from the date of the issuing of this recommendation. |
Dated: 2nd March 2023
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Disciplinary procedures, appeal of a disciplinary sanction |