Worker

Employer

Anonymised Parties

A Service Engineer

A Medical Equipment Company

Representatives

Thomas Faulkner, Connect

Judy McNamara, IBEC

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 - 00003536

09/12/2024

The worker commenced with the employer as a service engineer in March 2000.  His job involved servicing and repairing diagnostic equipment on clients’ sites, mainly hospitals and laboratories.

On October 4th 2024, the worker was issued with a written warning arising from three problems with his conduct that were investigated in accordance with the company’s disciplinary procedure:

1.       A telephone call from a hospital radiographer complaining that he was late for a service call on May 1st 2024;

2.       The failure to answer his work mobile phone;

3.       Conduct towards his line manager.

In addition to the written warning, the manager who chaired the disciplinary investigation decided to cancel the worker’s bonus for the financial year that ended on September 30th 2024.  The bonus would have been equivalent to 10% of the worker’s annual salary, around €6,600.  Mr Faulkner argued that this sanction is a double punishment and is excessive.

The worker appealed against the issuing of the written warning and an appeal hearing was held on November 8th 2024.  Although he set out three grounds of appeal, the warning was not rescinded and remained on his file.  At the hearing of this dispute at the WRC on September 29th 2025, Mr Faulkner argued that the company should not have moved to a formal investigation without attempting to deal with the issues informally in the first instance.

In his submission which was provided to the WRC in advance of the hearing of this dispute, Mr Faulkner reiterated many of the arguments raised by the worker at the appeal hearing.  He suggested also that there was a rift in the relationship between the worker and his line manager arising from a disagreement about new terms and conditions associated with working weekends.  In 2022, the worker opted to sign up for terms and conditions proposed in 2022 to provide cover for weekends; however, he claims that he was offered different and less beneficial terms compared to his colleagues.  He claims that his line manager didn’t resolve his grievance about the new terms and conditions, with the result that, he opted out of the arrangement.

Mr Faulkner referred to problems the worker had with his laptop and mobile phone.  Around September 2023, he requested a new laptop and in December that year, he requested a new SIM card and then had to ask for a phone.  Mr Faulkner suggested that the reason the worker was unable to take calls on his mobile phone was because of the problems with his SIM card and phone.

Mr Faulker argued that the company delayed the investigation of the complaint from the customer on May 1st 2024, only beginning the investigation on July 11th.

The union’s position is that all the incidents that resulted in the worker receiving a written warning stem from his request to be given the same terms and conditions as his colleagues who work as field engineers.  Mr Faulkner claims that the worker was offered “a more modified contract” which left him at a disadvantage compared to his colleagues.

Mr Faulker asked me to recommend a reduction in the severity of the sanction issued to the worker and the payment to him of the bonus which was withheld.

Setting out the employer’s position, Ms McNamara said that the warning issued to the worker on October 4th 2024 was to remain on his file for nine months until July 3rd 2025.  The warning has expired and Ms McNamara argued that, consistent with previous decisions of the Labour Court[1], I have no role in recommending that the warning should be removed.  The warning is no longer valid.

Regarding the reasons for the warning, Ms McNamara said that the company treated the worker fairly, removing one of the reasons for initiating the disciplinary investigation in the first place, an issue related to his level of absenteeism.  This issue was not addressed because the company’s policy is for absenteeism to be addressed under a policy separate to the disciplinary policy.

The head of service said that the worker was provided with a voicemail recording of the complainant from the hospital radiographer and a transcript of the recording.  It was apparent that the theatre where the radiographer was working was booked off for the service call at 11.00am.  When the worker hadn’t arrived at around 12.00pm, the radiographer was concerned that the theatre might not be handed back on time for treatments.  We know from the information provided by the worker at the hearing that he fixed the equipment in less than an hour of his arrival at 12.30pm.  The issue for the employer however, is that the worker did not communicate with the customer, or with the call desk or with his line manager, despite the evidence from his mobile phone records that he made several calls before he arrived at the client’s premises.

Ms McNamara said that the issue with the worker’s terms and conditions are not related to the disciplinary matters that were the subject of the investigation in July 2024.  The head of service explained the background to this matter, and the company’s policy to designate a starting point for travel to work within a 50 km radius of clients’ sites.  The worker lives in south Wicklow, and many of his calls are in the Dublin area.  He objects to the 50km radius rule.  The head of service said that another colleague is paid from a point of a junction on the M9 motorway.  Two other employees didn’t sign up to the 2018 terms and conditions.

Addressing Mr Faulkner’s contention that the company could have initiated the informal disciplinary procedure, Ms McNamara said that the worker’s relationship with his line manager wasn’t conducive to an informal discussion about his conduct.

In response to the decision not to pay the worker his bonus for 2024, Ms McNamara said that the bonus policy is set out in the company’s Annual Profit Share Bonus Scheme, a copy of which was provided to me in advance of the hearing.  Ms McNamara asked me to consider clause 11 which provides that the company,

“…reserves the right to cancel (or delay) payment of any bonus due under this scheme to any employee who has been subject to a written warning following disciplinary or capability action during the relevant business year, or where employees are subject to disciplinary/capability investigations or compliance concerns that are not concluded at the point of payment.”

Ms McNamara said that the policy is adhered to in any situation in which an employee is the subject of written warnings or incomplete disciplinary/capability investigations at the time the bonus payment is due.  It is not within the scope of the Respondent to deviate from the policy, because this would be grossly unfair to other employees in similar situations who have had their bonuses cancelled.

Ms McNamara concluded her submission by saying that the written warning was issued to the worker at the end of a fair procedure, in line with Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures.  He was informed of the allegations against him and given an opportunity to respond.  The issue was fully investigated before a decision was made.  The worker was represented throughout the process.  The decision to issue a written warning took account of the representations of his union and he was given an opportunity to appeal.

I have given careful consideration to the worker’s claim that the issuing of a written warning was unfair, that the sanction was excessive and that the employer did not adhere to their own procedures.  I note the employer’s position that the warning has expired, and so the issue which is the subject of this investigation is no longer open to debate.  Taking my authority from the decisions of the Labour Court in similar instances, I can exert no influence over a warning that no longer exists.

Considering the decision of the employer not to pay the worker the bonus due for 2024, Mr Faulker argued that this was too severe a sanction.  I agree that the failure to pay the bonus was indeed severe; however, this provision is included in the employer’s disciplinary procedure and, as the adjudicator in this matter, I cannot recommend that this worker is singled out for treatment that is inconsistent with the procedure.

It is my view that this dispute was dealt with when the worker appealed the issuing of the written warning and I recommend therefore, that no further action on the matter is taken by either party.

Expired written warning, severity of sanction