Worker

Employer

Anonymised Parties

A health service clerical officer

A health service

Representatives

P.J McEvoy

Mary Fahy BL

Instructed by J D Scanlon & Company LLP Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003359

31/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00003360

31/10/2024

The worker filed her complaint form with the WRC on 30 August 2024.

It set out that she was in employment with the employer since 19 March 1999 and remained in employment.   

The dispute related to an unfair disciplinary process and appeal.

At the hearing it was confirmed by the employer that the outcome of the disciplinary procedure had expired and had been removed from the worker’s personnel file.

The worker's dispute in relation to a disciplinary process undertaken by the employer in 2022 following an email sent by the worker to her line manager in July 2022. 

This email was one of a chain of emails that followed a meeting on 15 July 2022 with the worker's line manager. The meeting was a stress risk assessment meeting and the worker was accompanied by her union local representative who is also an employee of the employer.  The worker requested that the meeting was audio recorded by her line manager and she also recorded it on her own phone. 

The worker claimed that during the meeting her line manager made an extremely unfounded statement or allegation which accused the worker of not carrying out her duties regarding medical certificates over a period of 22 years.

The worker was taken aback by the inaccurate statement of her line manager and described it as quite offensive. She was extremely hurt as the allegation was absolutely without foundation. She stated that if it was factual, the Gardai would have to be contacted due to the seriousness of the alleged missing documents. The worker requested that the allegation be fully investigated.  However, her line manager said there would not be an investigation and she wouldn't be calling the Gardai.

The worker set out that she was unwell during this assessment meeting and that her union representative did not support during the meeting.

I was provided with a chain of emails between the worker and her line manager which culminated with the email from the worker to her line manager on 21 July 2022. The worker set out that her line manager had made a very serious allegation against her in relation to her good name and her character. She said the allegation was outlandish and unfounded and that the worker had no option but to contact the Gardai.

A different manager with the employer wrote to the worker on 16 August 2022 requesting the worker to attend a meeting on 25 August 2022 under stage I of the disciplinary procedure. The letter enclosed a copy of the worker's email though there was a typing error and should have stated 21 July 2022 in the letter.  The letter went on to state that the worker's line manager had advised the manager dealing with the disciplinary procedure that there was no basis to the content of the worker’s email and the tone and language is caused her a lot of stress. It claimed the worker’s email was vexatious and designed to cause stress and anxiety.

The worker's position was that she never received a copy of the alleged complaint made by her line manager against her. She considered that senior management were assisting in the making of the serious fictitious complaint against her. She took issue with being sent the Dignity and Respect policy.

There were numerous letters and emails between the parties to arrange a date for the disciplinary meeting which was ultimately scheduled for 6 December 2022. The worker did not attend the meeting. The reason for this was that her request for all of the alleged correspondence /documentation in relation to the disciplinary complaint had not been provided to her. She also had an issue with regard to the overlap between this disciplinary process and her personal injury proceedings in the High Court.

A stage II disciplinary meeting was scheduled and took place on 11 July 2023. The worker had an issue with her union representation at this meeting. The outcome of the stage II hearing was that the worker was given a written warning which was to remain in her file for nine months.

The worker exercised her right of appeal and an appeal hearing took place on 24 August 2023. For the appeal meeting, the worker requested that she bring a family friend, but she was not allowed to do so.

It took until 19 July 2024 for the findings and outcome report to issue.  The worker’s appeal was not upheld.

The worker was not happy with the appeal outcome and was left shaken, upset, extremely hurt and let down by the whole process.

The worker submitted that she felt extremely upset, stressed, undermined, bullied, made little of, intimidated, harassed, discriminated against and threatened by both senior management and her union.  She felt she was held back from promotion.

The worker raised a query by email on the 26 July 2024.  This was not replied to.  She queried whether the appeal decision maker had listened to the audio recording of the meeting of 15 July 2022.

The worker described the whole process as extremely offensive and degrading and described her work environment is toxic. She said she had no safe place to go.

The employer's position was that the basis for the instigation of the disciplinary process was

(a)     the tone and content of the workers email 21 July 2022 to her line manager together with

(b)   the email from the workers line manager indicating that she had taken objection to the tone and content of email.

The worker sought a copy of the "alleged complaint" and the employer confirmed there was no other document of complaint.

In the email 15 July 2022 at 14.51, the worker's line manager stated "I have a new phone since last week and for whatever reason it did not record the meeting today even though I thought I had it properly set up? This is my issue". The employer's position was that the worker was aware at all times that the meeting of the 15 July 2022 not been recorded by the line manager.

The line manager replied by email 19th July 2022 setting out "this was in no way an allegation and as such there is no allegation to withdraw".

Notwithstanding her line manager's clear confirmation that no allegation was been levied at the worker, the worker proceeded to send a further email to her manager on the 21 July 2022.

The email in question, was deemed inappropriate in tone and content. The line manager took objection to the tone and content of the email.

The letter 16 August 2022 the worker was asked to attend a meeting been conducted under stage I of the disciplinary procedure in relation to an email she sent to her line manager a copy of the email was enclosed with the letter. It was noted that the email was incorrectly described in the body of the letter as having been sent on the 11 July 2022 when in fact it was sent on the 21 July 2022.

The worker was advised that she could be supported by a work colleague or a union official.

On the 21 November 2022 the worker confirmed that her union official would be attending the scheduled disciplinary hearing on the 6 December 2022 and that she wished to have the meeting recorded.

As there was no attendance at the scheduled disciplinary hearing, the worker was advised that the matter would be escalated in accordance with the internal disciplinary procedure.

The stage II disciplinary meeting took place on the 11 July 2023.

The worker's request to record the stage II meeting was declined.

The outcome of the stage II hearing was that the worker was given a written warning which was to remain in her personnel file for nine months.

The employer acknowledged that an appeal hearing was heard on 24 August 2023 but the findings and report did not issue until 19 July 2024. The appeal decision maker apologised for the delay.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

This is an industrial relations complaint which is treated differently than an employment rights complaint. The hearing was in private and the parties names are anonymised in this document.  The hearing was informal.  Only a summary of the dispute is set out in this recommendation.

As the relationship between the parties had broken down for some time, to comply with fair procedures and the practicalities of a hearing, the worker was requested to limit her complaints to those set out in her complaint form. 

Industrial Relations disputes are primarily heard on the basis of factual submissions provided by the respective parties. Witneses were invited to give an oral recollection of events, facts and matters within their knowledge. I allowed both sides to give me whatever information they believed was relevant to my decision making process. 

My role is to carry out an independent review of the trade dispute between the parties to resolve the dispute. Any recommendation I make is not in essence an award and does not give rise to justiciable rights.

My review was of the three issues outlined at the start of this recommendation namely

1.            Failure to provide the written complaint to the worker

2.            Failure to allow the worker have representation for her choice during the disciplinary process

3.            Failure of the appeal decision maker to listen to an audio recording of the pertinent meeting between the worker and her manager that was held on 15 July 2022.

As it is, this document has run to more pages than I had intended, however I felt it was beneficial to outline in summary what the parties presented to me.  I have taken time to consider the submissions. 

It is regrettable that the meeting of the 15 July 2022 has given rise to such a dispute between the parties, however I note that the underlying issues that have fractured the working relationship between the parties date back to 2019.  The worker feels very aggrieved as to her treatment by the employer in general terms.  This has progressed to the worker being on sick leave for a considerable period of time, issuing High Court personal injuries proceedings and referring this trade dispute to the WRC.

The worker has been in employment with the employer for over 26 years.  She advised that she had a good relationship with her previous manager. 

It has been well established in case law that it is beyond my scope as an Adjudication Officer to re-investigate workplace complaints or to re-assess the merit or otherwise of the underlying complaint that gave rise to the disciplinary procedure.  My role is in relation to determining if there was a breach of fair procedures during the disciplinary process. 

The employer has accepted that there was an error in dates in correspondence to the worker and an unacceptable delay in the appeal decision maker delivering his decision.  The worker seems to have taken this apology on board.  I commend her for that.  There does not appear to have been any pre-procedure – informal counselling as set out in the Employer’s Disciplinary procedure.   The worker did not have an issue with this. 

Whilst fair procedures are not an exact science, the essential hallmark of fairness is transparency and reasonableness.  The requirement for reasonableness applies to both sides.  While the worker may consider that she was very badly treated in the events that took place after her Stress Risk Assessment meeting on the 15 July 2022, this is not borne out in an objective review of what has taken place. 

In relation to the issues to be determined:

1.         Failure to provide the written complaint to the worker:

From my consideration of the information and statements provided, I am satisfied that the employer complied with its requirement to notify the worker with the allegation of serious misconduct as required on page 8 of its Disciplinary Procedure (January 2007) and under the general principles of fair procedures.

I find the worker had sufficient information to enable her to understand why she was subject to the disciplinary procedure and for her to engage with the process. 

The stance of the worker to require a written complaint from her line manager was not reasonable. 

Her line manager’s complaint related to the email sent by the worker on the 21 June 2022.  This was furnished to the worker on the 16 August 2022 and on the 30 August 2022. The email was enclosed in both letters.  The worker was advised that her email 21 June 2022 caused her line manager stress and distress.  This was given as the reason for instigating the disciplinary procedure on the 16 August 2022.   

Overall, I fine that the employer provided sufficient information to the worker during the disciplinary procedure outlining the basis of the complaint made against her.  This was sent to the worker on multiple occasions during the disciplinary process. 

2.         Failure to allow the worker have representation for her choice during the disciplinary process.

The disciplinary procedure in place for the Employer is dated January 2007.  It was put in place following union engagement.  The procedure covers all employees within the organisation save those listed.  The procedure sets out on a number of occasions in the document (page 3 and page 8) that the worker has the right to be accompanied during the stages of the disciplinary process by a union representative or work colleague. 

This is not an unusual position for an employer to adopt especially as the workplace is unionised.  While the worker may not have been happy with her union representation or feel that she had support from a work colleague to accompany her during the process, the refusal of the employer to vary its own procedures is not unreasonable.  The procedure has been put in place following consultation and if the procedure was disregarded at will, that would create more uncertainty in the process and could lead to a breakdown of the countrywide system.

3.            Failure of the appeal decision maker to listen to an audio recording of the pertinent meeting between the worker and her manager that was held on 15 July 2022.

The worker was aware that her line manager did not record the meeting from the email sent by her line manager at 14.51 on the 15 July 2022.

Despite this the worker did not submit her audio recording to the appeal decision maker. 

The worker complains that the appeal decision maker did not listen to the audio recording. 

On the basis that the line manager did not record the meeting, it is unreasonable for the worker to expect that a recording of the meeting was provided to the appeal decision maker by the employer.  It was open for the worker to provide her own audio recording to the appeal decision maker if she wished him to consider it. 

Disciplinary process.  Fair procedures.  Disciplinary procedure January 2007.