Worker

Employer

Anonymised Parties

A Laboratory Technician

A Food Processing Company

Representatives

Diarmuid Long SIPTU

Sophie Crosbie 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 - 00004857

01/08/2025

The Worker has over ten years’ service with the Employer as a Laboratory Technician The dispute concerns the Worker’s appeal of a First Written Warning issued by the Employer on 11 March 2025. The warning arose from an alleged procedural non-compliance in the collection of environmental swabs in a high-care production area on 18 February 2025. The warning carried a lifespan of nine months and expired in December 2025.

The Worker contends that the warning was invalid due to serious procedural deficiencies. This includes alleged  breaches of natural justice and failure to adhere to the Employer’s own disciplinary policy. The Employer maintains that fair procedures were followed, and the Worker was afforded representation and appeal. It argues that any procedural defect was cured by the offer of a rehearing.

The Worker submits that there were a number of irregularities in the disciplinary process. The Worker submits that the complaint originated from an unnamed production employee, Employee X, whose identity was not disclosed and whose statement was not formally tested. The Worker further argues that the Employer bypassed the informal stage of its disciplinary policy without justification. The Worker asserted that the disciplinary decision-maker met with another manager the evening before the hearing and discussed sanction, choosing a written warning over a final written warning, thereby predetermining the outcome. The Worker argues that this fundamentally breached his right to be heard at the following days disciplinary meeting.

In the matter of appeal, the Worker contends that the internal appeal outcome did not constitute a proper review but instead proposed a complete rehearing, amounting to an acknowledgment that the original process was fundamentally flawed. The Worker further argues that the sanction imposed was disproportionate considering his ten years’ service and absence of adverse consequence, in that no contamination was found and there was no adverse effect for the Employer.

Reliance was placed on Khan v Health Service Executive [2008] IEHC 234 and on Labour Court authorities including PRL Group v A Worker LCR20636 and Tesco Ireland PLC v Denise Curran AD173.

The Employer submits that it operates in a highly regulated environment where adherence to swabbing procedures is critical. Employee X made a complainant of insufficient swabbing for contamination in a work area. The Employer had to act upon the complaint immediately and the Worker was afforded an investigation meeting with representation, and a disciplinary hearing with representation. The Employer also afforded the Worker an appeal even though he was outside the appeal period as designated in procedures.

The Employer maintains that Management is entitled to consider potential sanctions in advance of a hearing and that the disciplinary procedure permits escalation to any stage depending on the circumstances. A full appeal was facilitated, and a rehearing before a new independent panel was offered. The Worker declined this offer and therefore failed to exhaust internal remedies.

The Employer argues that under Section 13 of the Industrial Relations Act 1969, the Adjudication Officer’s role is supervisory rather than substitutive in that the Officer cannot reinvestigate the substantive matter or substitute an alternative sanction, citing A Personal Assistant v A Trade Union ADJ-00030334, in this regard.

In conducting my investigation, I have considered all relevant submissions presented to me by the parties. At the hearing, the Employer’s representative stated that she had only become aware on the morning of the hearing that the Worker had allegedly been issued with a verbal warning dated 9 October 2024, said to have had a six-month duration and to have remained live at the time of the February 2025 incident. The Employer sought to rely on this alleged warning to justify progressing directly to a written warning and to support the proportionality of the sanction imposed. I am satisfied that this alleged verbal warning cannot be relied upon in determining the dispute. It was not relied upon contemporaneously during the disciplinary process. Fair procedures require that an employee be informed of the case they must meet and that any disciplinary decision be based solely on the matters put to them at the time. The submissions establish that the disciplinary process was conducted, and the sanction determined, solely by reference to the swabbing incident and the Worker’s account of that matter. There is no evidence that the alleged October 2024 verbal warning formed part of the case advanced to the Worker during the investigation or disciplinary hearing as a basis for escalation. A disciplinary sanction must stand or fall on the reasoning relied upon at the time it was imposed; an employer cannot retrospectively introduce an additional justification that did not form part of the original decision-making process.

It was accepted by the Employer that the disciplinary decision-maker met with another manager on the evening prior to the disciplinary hearing and considered possible sanctions, including the imposition of a final written warning. While preparation for a disciplinary hearing is legitimate, the prior consideration of specific sanctions before hearing the Worker’s representations gives rise, at minimum, to a reasonable apprehension of prejudgment. In Khan the High Court affirmed that decision-makers in disciplinary matters must approach the process with an open mind and must not predetermine the outcome. I am satisfied that the way sanction was approached in this case compromised the appearance, and therefore the integrity, of the disciplinary hearing. Furthermore, the Employer’s position seemed to oscillate from a position of alleging to gross misconduct to one where the alleged incident amounted to a misdemeanour. I note also that no statement was taken from Mr X. It is clear to me that the process was peppered with deficiencies to the extent that the process from start to finish was fundamentally flawed.

The appeal outcome directed that the matter be reheard before a newly constituted and independent panel. This is significant, as it reflects a recognition that the original process could not safely stand. In PRL Group v A Worker, the Labour Court held that where disciplinary procedures are fundamentally flawed, the sanction imposed cannot be sustained and recommended expungement. The principle emerging from that decision is that defects of sufficient gravity undermine the validity of the sanction itself. An offer of a rehearing does not automatically cure such defects, nor is an employee obliged to submit to successive processes to vindicate their entitlement to fair procedures.

While the Employer relies on a contractual clause permitting movement to any stage of the disciplinary process, such discretion must be exercised reasonably and in accordance with fair procedures. In Tesco Ireland PLC v Denise Curran, the Labour Court emphasised that adherence to agreed disciplinary procedures is fundamental and recognised that even an expired warning may warrant expungement where proper process has not been observed. In circumstances where the process leading to sanction has been procedurally compromised, proportionality cannot be assessed in isolation from the fairness and integrity of that process.

Although the warning at issue has expired, it remains on file and may influence future disciplinary escalation. As recognised in Tesco Ireland PLC an expired sanctions may have ongoing consequences and, where imposed following a defective process, may require expungement. The dispute is therefore not academic.

In summary, I do not accept that the alleged verbal warning from October 2024 can now be relied upon to justify escalating matters or imposing a sanction. I am also satisfied that the disciplinary hearing was undermined by apparent predetermination and the other flaws outlined above. The appeal decision directing a full rehearing further confirms that the original process was materially defective. In line with established Labour Court decisions, a sanction imposed following a procedurally flawed process cannot safely stand.

Section 13 of the Industrial Relations Act 1969, Written Warning Appeal.