Worker

Employer

Anonymised Parties

A Council Worker

A Local Council

Representatives

SIPTU

 Internal/Self-represented

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 - 00001478

22/06/2023

The dispute arises from the Worker being disciplined by the Employer, a finding of misconduct (but not amounting to gross misconduct) being made and the sanction of demotion being imposed.

The Worker who was legally represented throughout the internal process, and who is now represented by his union at the WRC, has raised a number of complaints in relation to the disciplinary process as well as the sanction imposed, which he submits is excessive and disproportionate. He cites S.I. 146/2000 in this regard as well as the Employer’s disciplinary procedure, as set out.

It is submitted that the sanction was arrived at and imposed without warning, whereas it is submitted that performance and development documents should be completed in a timely fashion, at least going forward. It is further submitted that a relocation was added on ad-hoc. This is denied by the Employer.

It is the Worker’s case that both the process and the outcome were in breach of fairness and natural justice.

The Worker’s representative further highlights the potential utilisation of supervisory training and conflict resolution workshops, as may be appropriate.

The Employer denies the Worker’s claims. It submits that it conducted an independent investigation on foot of complaints made against the Worker by other employees, in line with its internal policies under ‘Dignity at Work’, that the Worker was legally represented throughout and that his procedural rights were vindicated as follows - each stage of the process (investigation, disciplinary hearing, appeal) were conducted independently by different people, that he was represented throughout, that the allegations were put to him and he was afforded a right of reply, that he was afforded a right of appeal (which he exercised), that the sanction is one provided for in his contract of employment (and the seriousness of the allegations and the potential sanctions were drawn to his attention), and that in circumstances where seventeen (17) allegations were upheld against him that it is a proportionate sanction. The Employer further submits that in circumstances where the Worker has been afforded his procedural rights, the WRC has no jurisdiction to ‘look behind’ an Employer’s decision in relation to an internal disciplinary matter (relying on the Supreme Court case of McKelvey V. Irish Rail [2019] IESC 79) and seek to substitute it with its own, as long as the decision taken is one which falls within a ‘band of reasonableness’ of decisions that a reasonable employer could have taken in the circumstances.

It is submitted that this case involves the Worker who has been employed by the Employer since 1987. He was in the position of General Service Supervisor (acting) since February 2011 (8 years) and formally in the position of General Service Supervisor since April 2019. The Worker was issued with a disciplinary sanction of demotion, which has affected his pay, terms and conditions of employment and pension. The Worker wishes to appeal this sanction and return to his original post of General Services Supervisor.

Background to the claim

The Worker was made aware by his Employer that complaints had been made against him by two colleagues, which were investigated together internally. The Worker was legally represented for the investigation process and internal disciplinary matters.

It is submitted that the complaints related to the Worker’s style of leadership in his role of General Services Supervisor (GSS). The outcome of the investigation resulted in the Worker being issued with disciplinary sanction of demotion and was removed from the role of GSS and demoted to the role of General Operative. The Worker submits that the two complaints should have been investigated separately and further contends that the sanction was too severe and without timeline.

The outcome of the disciplinary was issued by MM, by letter dated 18th August 2022. This letter is attached in Appendix 1.

In addition to this sanction being imposed on the Worker, he was then issued with a letter from CN, dated 22nd August 2022, which confirmed the Worker was placed on administrative leave and was not allowed to attend the Employer’s premises. This is attached in Appendix 2. It also confirmed the reduction in wages and no allowances were payable with the demoted role, despite that these allowances were not linked to the GSS role.

Union’s position

The Worker was issued with a sanction of demotion on a permanent basis. It is contended that the employer has acted outside fair procedures by issuing permanent disciplinary action against the Worker. It is submitted that the employee should be notified of the timeframe the disciplinary action will remain on his record and again notified of its removal from the record.

Following the disciplinary sanctions being imposed on the Worker, it is submitted that he was further disciplined by the Employer placing him on administrative leave and by not allowing him to attend its premises. This is the type of action taken by an Employer when an employee is suspended pending the outcome of an investigation. It is submitted that this again appears to impose another sanction on the Worker.

It is submitted that the Worker was not provided with any training for the role of GSS since 2013. It is submitted that he had carried out the role without blemish from 2011 before these complaints were made against him in 2020. It must be noted that he was made permanent in the role in 2019, he had been in an Acting capacity since 2011.

The Worker submits that the complaints were malicious in nature. He contends that the demotion is in breach of paragraph 5.1 of the grievance and disciplinary procedure (January 2012), which sets out that: “If a staff members conduct or performance still fails to improve, following a final written warning, the appropriate line manager e.g., Senior Executive Officer/Senior Engineer/Director of Service may invoke a disciplinary action short of dismissal. The Senior Executive Officer/Senior Engineer/Director of Service will act reasonably in all cases when deciding on appropriate disciplinary action.” It is submitted that the Worker was not provided with an opportunity to improve. Instead, he was removed from the GSS post on a permanent basis. As a result, the Worker has suffered the following:

·       GSS weekly rate €992.69 — GO weekly rate €643.49

·       Phone allowance weekly rate €7.94

·       Eating on site weekly rate €9.50

·       On Call allowance weekly rate €93.23, plus callouts and double week at Christmas

·       Retainer for flood barriers €1 ,000 annually plus callouts

·       Greasing allowance €125.27 per 5 day week (1 hour of flat hourly rate per day)

·       Removal of Employer transport, a substantial cost to the Worker

It is submitted that these allowances were not linked to the GSS role and therefore should not have been removed from the Worker.

The Worker attached a statement of events and concerns at Appendix 3.

It is submitted that Annual Performance Reviews were conducted every year from 2011 to 2019, then in 2019 these ceased. The Worker should have been made aware of any shortfall in his performance in these years to allow him the opportunity to improve any necessary shortfalls that should have been brought to his attention. A Performance Improvement Plan (PIP) was not offered to the Worker. Instead, he was severely disciplined following this process.

The Worker was permanently demoted and eventually informed he was to report to work as a General Operative in a completely different location. Relocation was not part of the disciplinary sanction yet this was imposed on the Worker.

From 2011 to 2019, the Worker was the only GSS in the [Location redacted] depot. However, in 2019 two permanent positions of GSS was advertised, the Worker was successful for one of these posts and one of the complainants was successful for the second post. These two GSS worked alongside each until the complaint was lodged against the Worker. After the Worker was punished and demoted with relocation, the second GSS post in [Location redacted] was not filled and has not been filled to date.

Conclusion

The union is requesting that the permanent sanction of demotion is removed from the Worker’s record as it is too severe in the circumstances where there was an unblemished record throughout his 36 years of service; and that he be restored to the position of General Services Supervisor in [location redacted].

While the Worker contends he is not deserving of any disciplinary sanction, he believes the Employer had other options open to them but chose the most severe and continued to impose further sanctions after the disciplinary process was concluded.

The Worker has submitted a claim under section 13 of the Industrial Relations Act, 1969, in relation to disciplinary sanctions up to and including dismissal, citing (as per his complaint form, at Appendix 1) a "deeply flawed investigation and disciplinary processes" following which the Worker was issued with what he describes as a "disproportionate sanction" of demotion. The Employer denies the claim in full.

It is submitted that the Worker was demoted by way of disciplinary sanction but only after a detailed and comprehensive investigation, appeal of the investigation, disciplinary process, and appeal of the disciplinary process, during which the Worker was legally represented at all stages. There was a large volume of correspondence between the Worker’s legal advisors and the Employer throughout the full processes of investigation, appeal of investigation, disciplinary process, and appeal of disciplinary process, as referred to in more detail in these submissions.

The Employer submits that it is at a loss to understand the allegations set out in the WRC Complaint form of a deeply flawed investigation and disciplinary processes and notes that no further detail has been provided by the Worker in this regard.

Background

The Worker commenced employment with the Employer on 31st August 1987. He is employed pursuant to the most recent contract of employment dated 8th April 2019, which is attached at Appendix 2.

On 18th June 2020 and 2nd July 2020, two separate complaints were made by two employees against the Worker. The complaints were appropriate to be addressed under the Respondent's Dignity at Work Policy, a copy of which is attached at Appendix 3. The Worker requested the matter to be addressed by way of a formal investigation.

The Respondent appointed an independent, external investigator, NO ("the Investigator") to conduct the investigation into the complaints made against the Worker. The Investigator operated in accordance with Terms of Reference, a copy of which is attached at Appendix 4.

The Investigator issued his Investigation Report on 15th April 2021 and a copy of the Report is attached at Appendix 5. A number of complaints were upheld against the Worker and [Name Redacted], HR, of Employer wrote to the Worker setting out the Investigator's findings in that regard. Copies of  those letters to the Worker dated 28th April 2021, are attached at Appendix 6.

By letter dated 10th May 2021, addressed to then Chief Executive, TL, the Worker indicated that he wished to appeal the Investigator's findings and the Worker set out his grounds of appeal. A copy of the Worker’s letter is attached at Appendix 7.

The Chief Executive of the Employer appointed SC, as the Appeals Officer, to hear and consider the Worker’s appeal of the investigation findings. SC wrote to the Worker by letter dated 16th July 2021 to advise the Worker of her appointment as Appeals Officer and to set out the basis upon which SC intended to deal with the Worker’s appeal. A copy of this letter is also attached at Appendix 7.

SC contacted the Worker on 11th August, 2021, seeking agreement on a date for his Appeal Hearing. SC then received correspondence from Solicitors acting on behalf the Worker dated 26th August, 2021, and it was agreed that the appeal hearing would be held on 3rd September 2021. This date was subsequently cancelled as SC was advised by the Worker’s legal representatives that the Worker was unable to attend the hearing on 3rd September 2021. SC emailed the Worker’s Solicitors on 13th September 2021, seeking a suitable date on which the Worker could attend the appeal hearing. A copy of SC’s email is attached at Appendix 8. The Worker’s Solicitor responded by email dated 23rd September 2021, advising that the earliest date they were available was the 4th of November 2021. The appeal hearing eventually proceeded on 6th December 2021. The Worker was legally represented at the appeal hearing. The Appeal Officer, SC, prepared her outcome report which is dated 5th April 2022, and a copy is attached at Appendix 9. In the "Conclusion" section of her outcome report, SC sets out as follows:- ‘Having met with the appellant and his solicitor and listened to the 2 grounds of appeal, and having clarified the facts of those 2 grounds of appeal with both [Name redacted] SEO of [Employer] and NO, Investigator, I am satisfied that the appellant [Name redacted] was treated fairly and with natural justice during the formal investigation and that the Dignity At Work policy was fully complied with (Ref Paragraphs 11.1, 11.2, 11.5, 11.6, 13.1,13.2,13.3) The appeal by [the Worker] against the findings of the Investigator (Report dated 14th April 2021) is not upheld.

The then Chief Executive, TL, furnished a copy of the appeal outcome to the Worker by letter dated 27th April 2022. A copy of TL’s letter to the Worker is attached at Appendix 10.

The Worker’s Solicitors wrote to the Appeals Officer, SC, by letter dated 4th May 2022, attached at Appendix 11. At that stage, SC had completed her appeal report and therefore deemed it inappropriate for her to engage any further in relation to the matter. She advised the Worker  accordingly by email dated 6th May 2022, attached at Appendix 12.

ER, Acting Head of HRM of the Employer, then wrote to the Worker by letter to advise the Worker that a disciplinary process would be undertaken on foot of the findings of the Investigator and that MM would be appointed to conduct the separate disciplinary process. The disciplinary process was to be undertaken under the Council's Grievance and Disciplinary Procedure, a copy of which is attached at Appendix 13.

MM wrote to the Worker by letter dated 21st June 2022 to advise of his appointment to undertake the separate disciplinary process, and to advise of the basis on which he would conduct that process.

MM held a disciplinary hearing on 20th July 2022. Present at the disciplinary hearing were MM, the Worker, the Worker’s Solicitor, FH (Minute taker). The meeting was adjourned for MM to consider what sanction, if any, was appropriate in this matter.

MM prepared his outcome to the disciplinary meeting in writing and issued same to the Worker and his legal representative. A copy of MM's letter outlining his decision in that regard dated 18th August 2022 is attached at Appendix 14. MM concluded that the Worker had been guilty of a breach of his employment contract amounting to misconduct. MM states that he had regard to the Worker’s contract of employment and the General Services Supervisor Duties set out therein, which include:

- to supervise, motivate and direct staff in your area... ; and

- to be responsible for the provision of a safe working environment.

The nature of the misconduct was:-

(a)    An unacceptable level of interference by you in [Name of employee redacted] area of work which compromised his position and showed a lack of respect for your GSS colleague.

(b)   A pattern of behaviour by you that can cause unrest for staff working to you and a style of leadership that is through a level of fear and control that can impact negatively on your work colleagues.

MM confirmed that he has considered the submissions that the Worker provided to him during the meeting in determining the appropriate sanction. MM sets out that the Disciplinary policy provides for a range of sanctions and he had determined that unfortunately given the senior role held by the Worker, and the trust placed in him to conduct his duties, given the findings of the investigation, it was with regret that he had no alternative but to confirm that the Worker was to be demoted to a non-supervisory role of General Operative with immediate effect.

MM confirmed that the Worker had the right to appeal against this demotion, in writing, to the Chief Executive, within 10 working days of his letter, stating the reasons for the appeal.

CN of the Respondent wrote to the Worker by letter dated 22nd August 2022 to confirm that, considering the outcome of the disciplinary hearing, the Worker was being place on administrative leave pending notification of a new assignment.

The Worker’s Solicitors then wrote to the Employer’s Chief Executive by letter dated 22nd August 2022, confirming that the Worker intended to appeal the disciplinary outcome of MM. A copy of the letter is attached at Appendix 15.

A second letter from the Worker’s Solicitors was sent on behalf of the Worker to the Employer on 22nd August 2022, taking issue with the fact that the Worker had been "suspended" in light of his demotion arising from the disciplinary process. The Head of HRM, TO responded to the correspondence from the Worker’s Solicitors by email dated 24th August 2022 to confirm that the Worker had been placed on administrative leave pending a new assignment and had not been suspended as suggested by them.

A further letter dated 24th August 2022 was issued by the Worker’s Solicitors to the Employer on behalf of the Worker. This letter set out that the Worker’s demotion should be placed on hold pending the appeal and threatened injunctive relief against the Employer.

The Employer replied to the letter dated 24th August 2022 from the Worker’s Solicitor by letter dated 26th August 2022, setting out the background to this matter and confirming that there is nothing in the Employer’s disciplinary procedures to support the position that a disciplinary sanction short of dismissal should be stayed in terms of implementation of a pending appeal. The letter also set out that should the outcome of the Worker’s appeal overturn the sanction of demotion, the Worker would be reinstated to his supervisory position and would receive backpay to the date on which the demotion took effect. The Employer also confirmed that no steps would be taken to replace the Worker’s supervisory role pending the outcome of the appeal. The letter also confirmed that the Worker’s administrative leave would end on 29th August 2022.

A further letter dated 26th August 2022 was issued by the Worker’s Solicitors, on behalf of the Worker, outlining his grounds of appeal and a copy of that letter, addressed to the Chief Executive of the Respondent is attached at Appendix 16.

The Chief Executive of the Employer nominated VO to hear the Worker’s appeal of the outcome of the disciplinary process. VO wrote to the Worker by letter dated 14th February 2023 to advise the Worker of her appointment and to set out the basis upon which she would conduct the appeal. A copy of the letter to the Worker is attached at Appendix 17.

An appeal hearing took place on 6th April 2023, at which the Worker was again represented  by his Solicitors. Following the appeal hearing, VO issued her outcome on all grounds of appeal raised by the Worker. Some of the grounds of appeal were not upheld as VO noted that her role, as Appeals Officer, was to deal with the Worker’s appeal of the outcome of the separate and distinct disciplinary process, which was undertaken by MM, and some of the Worker’s grounds of appeal were not related to that disciplinary process but were related to the earlier investigative process, which the Worker had already separately appealed and which process was closed. In relation to two relevant grounds of appeal, being those of proportionality of the sanction of demotion, VO finds as follows.

‘Having considered these grounds of appeal, I am satisfied that the sanction imposed on you by [MM] is provided for within the Council 's disciplinary policy for misconduct. You were found to have been guilty of a breach of your employment contract amounting to misconduct, the nature of which was clearly outlined in [MM]'s letter to you dated 18th August 2022, and the sanction of demotion was imposed only following full consideration of the issues discussed at the disciplinary meeting, at which you were legally represented. In light of the findings of that disciplinary process, I am not satisfied that the sanction of demotion was, in the circumstances, disproportionate to the misconduct found.

MM outlined in his letter of 18th August, 2022 that your misconduct was an unacceptable level of interference by you in [Name Redacted]'s area of work which compromised his position and showed a lack of respect for your GSS colleague and that there was a pattern of behaviour by you that can cause unrest for staff working to you and a style of leadership that is through a level of fear and control that can impact negatively on your work colleagues.

In light of these findings, it seems to me that the penalty of demotion is reasonable in view of all the circumstances and comes within the range of responses which a reasonable employer might make in these circumstances. Furthermore, l am aware that the sanction of demotion is not unusual in the Council in cases of misconduct. Therefore, I do not uphold these grounds of appeal.’

A copy of VO's letter outlining her appeal outcome, and which is dated 10th May 2023 is attached at Appendix 18.

The Worker then issued his Industrial Relations Act claim to the WRC in June 2023. The Worker is now represented by his union, SIPTU, who did not represent the Worker throughout any of the processes referred to in these submissions. As outlined above, it is alleged that the investigation and disciplinary process undertaken by the Employer in this matter are "deeply flawed" but no further detail is outlined in relation to that allegation.

The Employer’s Position

Procedures adopted

The procedures applied to the Worker prior to his dismissal were reasonable and fair on the following basis:

(a)                A detailed and comprehensive fact-finding investigation was undertaken, by an independent external investigator who found that of thirty complaints made against the Worker, over half of them, a total of seventeen, were upheld - the outcome of the investigation was reasonable including the facts found therein;

(b)                In advance of the investigation and disciplinary hearing, the Worker was informed of the seriousness of the allegations;

(c)                A detailed and reasonable investigation report was issued and provided to the Worker;

(d)                The Worker was afforded an appeal of the outcome of the investigation and was legally represented from this stage in the process.

(e)                A disciplinary hearing took place and was undertaken by a person not previously involved in the process, where the Worker was entitled to have a legal representative present; the allegations were put to him; he was afforded the opportunity to respond to the allegations; he was afforded the opportunity to provide any submissions he wished; his version was considered, and the findings made in the disciplinary outcome letter were fair and reasonable;

(f)                 The serious nature of the findings made against the Worker made demotion within the reasonable band of responses for the employer having regard to his length of service, his experience, and the number of incidences found against him;

(g)                The Worker was advised of the reason for demotion;

(h)                The findings of the disciplinary process were fair and impartial, took account of the representations made by him and all factors before the persons conducting the disciplinary process;

(i)                  The Worker was afforded the opportunity to appeal, and an oral hearing was held by a person not involved in the process prior to the appeal;

(j)                  Following the hearing the Worker was duly notified of the decision to reject his appeal and detailed reasons were provided.

(k)                The Employer’s Disciplinary Procedure provides, at clause 3:2 as follows;

Disciplinary action may include: -

(a) a verbal warning (b) a written warning

(c)   a final written warning

(d)  some other appropriate disciplinary action short of suspension without pay

(e)   suspension without pay

(f)   transfer to another task or section

(g)  demotion

(h)  some other appropriate disciplinary action short ofdismissal

(i)    dismissal

The Employer submits that the demotion of the Worker was justified by reasons of his conduct and the Employer pleads that the Adjudicator take account of all the circumstances of this case and accept the Employer had little option but to demote the Worker having regard to his conduct.

The Worker’s investigation, appeal, disciplinary hearing, and appeal were conducted in accordance with best practice, principles of natural justice and fair procedure (insofar as this arises in the context of the investigation, and the Employer’s own Disciplinary Procedure). The Worker was provided with comprehensive evidence of the allegations against him, he was afforded ample opportunity to respond to such allegations and make any representations he wished to be appropriate. This accords to the fair procedures as stated by Clarke J. as he was then in Rowlan v. An Post where he stated that the basic elements required for fair procedures in a disciplinary hearing are: "That a person who may be adversely affected is entitled to know the basis on which it is said that they may suffer their detriment and then they must be given an opportunity which, in all of the circumstances of a particular case, affords them a reasonable opportunity to test and address the basis on which it might be said that an adverse outcome could arise.”

Proportionality of Sanction

It is noted that the Worker contends that the sanction of demotion was disproportionate. For a start there is no basis for this contention where the Worker had seventeen allegations upheld against him, leading to a finding of misconduct. In addition, he was a long-serving employee of the Council. Both factors give rise to the reason why the sanction of demotion was found to be proportionate and reasonable, in all the circumstances.

In Bigaignon v. Power Team Electrical Services Limited 6 UD 939/2010 the Employment Appeals Tribunal found that "Does the punishment fit the crime? In considering this question the fact that a tribunal itself might have taken a different view in a particular case is not relevant. The task of the tribunal is not to consider what sanction the tribunal might impose but rather whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses.”

It is clearly the case that the sanction of demotion was proportionate for the reasons aforesaid and the adjudication officer is reminded to follow the reasonable band of responses approach.

In November 2019, in McKelvey V. Irish Rail, [20191 IESC 79, in addition to addressing the issue of legal representation in internal disciplinary hearings, the Supreme Court again re-affirmed the right of employers to deal with employee disciplinary matters internally.

It is submitted that the Employer behaved proportionately and reasonably, and that its response to the Worker’s conduct and the sanction imposed "came within the range of responses which a reasonable employer might make.”

The Employer refers to: Barry v Precision Software Ltd. (UD 624/2005) [20061 10 JIEC 1801, where the Tribunal said: “[I]n determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissal Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal... It is not for the Tribunal to intrude into the Respondent's managerial decisions. The Tribunal has to look at what a reasonable employer would do in the circumstances. Neither is it for the Tribunal to consider what sanction it would impose. The Tribunal's function is to decide whether the employer's reaction and sanction came within the range of responses, which a reasonable employer might make.”

The Employer further refers to: Allied Irish Banks Plc v Brian Purcell [2012] 23 E.L.R. 189. In this case Linnane J. reinforced the above stating: “...it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer's view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

These cases confirm the seminal case of Looney & Co. Ltd. v Looney UD843/1984, (taken from Mary Redmond, Dismissal Law in Ireland) wherein the EAT stated that it was its responsibility to "consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer 's actions and decision are to be judged.”

The Employer respectfully submits that once it is established that the sanction was one of the options the employer was reasonably entitled to make, the WRC does not have jurisdiction to "look behind" that decision, and/or substitute its judgement for that of the Employer.

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

I am guided by the High Court decision in McKelvey V. Irish Rail, [2019] IESC 79, which re-affirmed the right of employers to address employee disciplinary matters internally. It held that an employee is entitled to be represented, but not necessarily legally represented, as per the terms of the employee’s contract, and as long as the requirements of natural justice have  been given reality, in the context of the particular allegation/case. In the case herein, the Worker was legally represented throughout the process – that, in an of itself, goes a long way to vindicating the Worker’s rights within a process. The Worker is now seeking to raise additional points, at the WRC hearing, which were not raised previously. I do not think there is any reality to that, from a procedural perspective.

Additionally, the Worker’s union representative is seeking to dislodge ‘demotion’ as a potential disciplinary outcome, despite the fact that it is in the Worker’s contract of employment, on natural justice grounds – she advanced the argument that it is essentially a punishment of indefinite duration, and therefore, breaches the requirements of natural justice. She highlighted the impact on the Worker’s pension, in relation to the demotion. Having carefully considered that argument, I find that the disciplinary penalty of demotion is one which an employer can employ, as long as it is provided for in the Worker’s contract of employment. I find that it is no more indefinite in nature than the penalty of dismissal, which would also impact the Worker’s pension rights. In response to a query from the Adjudication Officer, the Employer stated that the Worker was free to apply in open competition for promotional roles, but the Worker’s representative emphasised that she felt he would not have any chance, in light of the finding against him and the demotion.

In this case, the Worker was demoted from a supervisory role to a non-supervisory role due to findings made in relation to his conduct on foot of an independent investigation, under the ‘Dignity at Work’ policy pertaining to his treatment of:-

1) A peer who was formally appointed at the same time as he was formally appointed. Previously, there had only been one supervisor in that depot - the Worker - and he was carrying out the role in an ‘acting’ capacity; and

2) Staff he was managing.

In relation to the peer appointed to the same role as him, the Worker seemed reluctant to accept that they were equals, instead positing that he was the more senior of the two, despite the fact that the equality between the men had been specifically clarified for him by the Employer, prior to the culminating incidents which led to the disciplinary process.

An argument was raised, by the Worker’s representative in relation to how ‘proportionality’ is to be applied. I am not persuaded by the manner in which proportionality was framed in that argument. The definition and requirements of proportionality were set out by the Supreme Court,  in Meadows V. Minister for Justice, Equality and Law Reform [2010] IESC 3 @ para 71 wherein Fennelly J. (majority verdict) states: ‘I prefer to explain the proposition laid down in the Keegan and O’Keeffe cases, retaining the essence of the formulation of Henchy J in the former case. I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied, on the basis of evidence produced by the applicant, that the decision is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense. I use the word, “substantive,” to distinguish it from procedural grounds and not to imply that the courts have jurisdiction to trespass on the administrative preserve of the decision-maker. This test, properly applied, permits the person challenging the decision to complain of the extent to which the decision encroaches on rights or interests of those affected. In those cases, the courts will consider whether the applicant shows that the encroachment is not justified. Justification will be commensurate with the extent of the encroachment. The burden of proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of Henchy J. The applicant must discharge that burden by producing relevant and cogent evidence.’

There was an argument advanced on behalf of the Worker in relation to training and performance management. The Worker’s representative highlighted that the standard mechanism of performance management (PMDS) had been suspended when the Covid-19 pandemic occurred and had not been reinstated since leaving the Worker in a position whereby no issue as to his performance had been raised; and that he had not received any training in the role since his formal appointment in 2019, the last training he received having been several years earlier when he was undertaking the role in an acting capacity. The Worker’s representative is seeking to rely upon the performance management policy and its reference to ‘conduct’ in relation to PIP (performance improvement plan) and is submitting that the Worker was not given an opportunity to improve. Having carefully considered that, I conclude that the issue in the case is ‘Dignity at Work’ rather than performance/conduct (attendance, time keeping etc.) – the allegations against him pertain to the undermining of his peer and the manner in which he treated subordinates.

I do not accept the submission that the Worker was ‘additionally punished by being placed on administrative leave and by not allowing him to attend Council premises.’ I accept the Employer’s version of events as to what happened in relation to this, and that no additional punishment occurred.

In circumstances where the Worker:-

-          was afforded legal representation throughout the process,

-          had notice of the allegations against him and the potential sanctions which could be imposed, dependent on any findings made, and where the sanction imposed is one of those identified,

-          was afforded a right of reply to the allegations made,

-          where each stage of the process (investigation, disciplinary hearing, appeal) was conducted independently by different people

-          was afforded a right of appeal (which he exercised) which was conducted by someone who had not been involved in the original process, and

I have not been able to identify anything which would allow me to alter or dislodge the Employer’s decision by ‘looking behind’ it.

I do not recommend for the Worker.

Dignity at Work; Disciplinary Process; Demotion; Proportionality; McKelvey V. Irish Rail [2019] IESC 79;