ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003166
Dispute for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969.
17th May 2016
Date of Adjudication Hearing: 20th September 2016.
Workplace Relations Commission Adjudication Officer: Sean Reilly
In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
BACKGROUND: SIPTU were in dispute with the Respondent in relation to a disciplinary sanction imposed on the Complainant.
Summary of Trade Union Case:
I have received a formal disciplinary warning unfairly.
SIPTU were submitting that a disciplinary warning was wrongfully issued by the Respondent to the Complainant.
SIPTU said the Complainant received the Warning following a Disciplinary Investigation into his refusal to undertake a particular task assigned to him on 18th November 2015. It was alleged the Complainant acted unreasonably, raised his voice in the course of discussions with his Team Leader.
The Complainant now states, as he has at all stages throughout the disciplinary process, that he did not refuse to undertake the task assigned, but he did point out that he was not competent or trained to carry out the function. He agreed, following some discussion with his Team Leader, to undertake the function with a competent co-worker. Sometime later in the shift the Complainant felt unwell with a headache, he met with the First Aider on duty and following this Meeting he left the Site as he was too unwell to continue his shift.
The Complainant was out of work sick for 6 weeks following the incident and upon his return he was requested to attend the disciplinary process which resulted in him being issued with a Verbal Warning. This Warning specifically states that he did not perform the task and left the Site. The Complainant will state that he attempted to perform the task with his co-worker, but was not able to fully perform the task as result of a headache brought on, he believes, as a direct result of the ‘heated’ discussion with his Team Leader.
The Complainant exhausted the internal appeal mechanism; however the Warning still remains, leaving the Complainant with no alternative but to make this appeal. SIPTU said there is no dispute that the process observed was thorough and in accordance with agreed procedure.
SIPTU said the Complainant is here as he wishes to clear his name and make it a matter of record that he never should have received this Warning in the first instance. SIPTU said that the Respondent will likely argue that there is no requirement for the WRC to rule on this matter as the Complainant’s employment ended by reason of redundancy recent and the Warning has expired. SIPTU said that this point makes it all the more important for the Complainant to clear his name as to be associated with a poor record that could affect his employment in the future.
SIPTU said that no doubt the Respondent will draw attention to the document, ‘Form of Acceptance’ which they will view as a settlement to all disputes between the Complainant and the Respondent. The Complainant’s view is that the Respondent was well aware that he was not accepting this Verbal Warning at that time and for that reason the Adjudicator should be in a position to rule in the Complainant’s favour that the Warning should never have been applied in the first instance.
SIPTU sought that the claim be upheld.
Summary of Respondent’s Position:
The Respondent said they were rejecting the claim.
IBEC said that as a preliminary jurisdictional argument the Respondent wishes to raise the fact that as part of the Redundancy Process in the employment the Complainant signed a full and final Settlement Agreement. He signed this settlement undertaking not to pursue claims under numerous pieces of legislation, including any “employee protection legislation”.
IBEC said the sequence of events is that the instant claim was submitted on 17th May 2016. However, the Complainant signed a Redundancy Settlement Agreement on 27th May 2016, which included an ex-gratia payment of €150,000 and compromised all claims past and present including the instant one. IBEC submitted that on foot of this Agreement, there is no jurisdiction for the Adjudicator Officer or any employment forum to hear this claim and it is requested that the Adjudication Officer rule accordingly.
IBEC said that if it is the case that the Adjudication Officer wishes to procced to hear the claim, they wish to bring attention to the Circuit Court case of Hurley -v- Royal Yacht Club . They said that case provides that statutory entitlements can be compromised providing the structure of the Agreement meets the “tests” and IBEC said there is no doubt that the tests are met in this claim.
IBEC said that without prejudice to the foregoing, the Complainant alleges that he unfairly received a formal disciplinary warning from the Respondent. The Respondent refutes the claim on a number of grounds. IBEC said the warning was given as a result of a breach of Company expectations in relation to carrying out assigned tasks. On 18th November 2015, the Complainant was asked to, “Charge D-502”, a relatively routine task. Following a discussion with the Team Leader about the Complainant’s training status, it was agreed that he would have a second operator accompany him to perform the assigned task and he actually left the Site. During the Respondent’s Investigation it transpired that the Complainant left the Site due to a headache brought on by the discussion with the Acting Team Leader. IBEC said that discussion is encouraged where an operator feels unqualified to perform the assigned task, however escalating the issue to the point where the Complainant felt the need to leave the Site is inappropriate and arguably insubordination.
IBEC said the Respondent acted in accordance with Company policy and procedure when they took necessary and fair disciplinary action against the Complainant. All mitigating factors were considered before reaching the decision to issue a verbal warning. IBEC said it is a fundamental requirement that an operator must perform assigned tasks and in this instance the provision of a second operator to assist in performing the task assigned is appropriate and reasonable. IBEC said the Complainant acted unreasonably by refusing to perform a task and subsequently vacating the premises. Furthermore, the Complainant was at all times afforded all benefits of fair procedure, in line with the Company’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedure, SI 146 of 2000, and the universal principles of natural justice. In particular he was afforded a full and fair investigation, was party to a disciplinary process in which all of his rights were upheld, the Respondent reached a reasonable conclusion and the sanction imposed was reasonable and proportionate in light of all the circumstances.
IBEC said that the Verbal Warning in question was in fact, no longer on the Complainant’s file at the time his employment ended. The Warning, which was effective from 18th November 2015, was kept on the Complainant’s file for 6 months in accordance with the Disciplinary Procedure and as there were no further performance issues, it was removed from his file on 18th May 2016.
IBEC said that without prejudice to their position that the Warning was fairly issued in every respect, as far as the Respondent is concerned the Warning is no longer live or a concern for the Complainant Based on the foregoing the Respondent sought that the claim be rejected and their position upheld.
Findings and Recommendation:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
In relation to the preliminary issues raised by the Respondent I do not accept that the Complainant is not entitled to have his claim heard and ruled/recommended on. There is certainly nothing in the Industrial Relations Acts that would prevent the Complainant from pursuing such a claim. In relation to the waiver signed when he received at his redundancy, I note that it is clear from a plain reading of that document that it is intended to protect the Respondent and prevent the Complainant from making any claim or complaint under the various pieces of labour law with a potential financial cost to the Respondent and this is not a claim that has ay potential cost to the Respondent.
I note and accept that the Verbal Warning in question has long since expired and accordingly is not live. In addition the Complainant has ceased employment with the Respondent and accordingly there can be no adverse consequences for him in relation to this; in addition both parties accept that fair procedures were observed by the Respondent in this matter.
In such circumstances it is difficult to understand the concerns of the Complainant in this matter. However, I do accept that the Complainant is genuinely concerned about the fact of the Verbal Warning. As a goodwill gesture and in order to alleviate the Complainant’s fears I recommend that the Respondent now expunge this lapsed warning from the Complainant’s file.
I so recommend.
Seán Reilly, Adjudication Officer.
Dated: __8 December 2016___