ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011943
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 21/Mar/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 13 of the Industrial Relations Acts 1969 andfollowing 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.
The Complainant has been employed as a General Operative with the Respondent sincre 2001. He is paid €1000.00 gross per week and he works 39 hours a week. He was issued with a Final written warning on 9th October 2017 for a period of 12 months. A dispute in relation to this was referred to the Workplace Relations Commission on 14th November 2017.
Summary of Complainant’s Case:
The Complainant is employed as a General Operative. He was issued with a final written warning on 7th October 2017 for “flagrant disregard for safety and safety regulations” to remain for 12 months. The Complainant believes this is a Category A event and not a Category D event as asserted by the Respondent.
On 31st August 2017 the Complainant was working operating a drum lifter at 4.30pm to complete a particular “blend” that required mixing 5 drums. He lifted the first drum with no incident but while lifting the second drum with the drum lifter, the clamp on the lifter slipped and the drum crashed to the ground, injuring the Complainant. The incident was reported and the Complainant completed the necessary paperwork. The Respondent conducted an investigation which resulted in the Complainant being called to a Disciplinary Hearing on 4th October 2017 with the outcome being communicated on 9th October 2017 and an appeal hearing took place on 23rd October 2017. This upheld the Final Written Warning.
SIPTU argued that the Complainant followed procedure on the day but did accept that the lifter was working on the day but that the findings went well beyond what could be considered rreasonable in the circumstances. The Company Disciplinary Procedures outline disciplinary events grouped in severity from A – D. Under Category A3 the Company outlines Poor Performance, Poor Quality or Productivity, minor damage to products or equipment due to carelessness and the sanction is a verbal warning. Under Category D (3) the Company outlines flagrant disregard for safety or safety regulations and the sanction is a final written warning. SIPTU argued that the investigation findings did not conclude or show any flagrant disregard for safety and it also noted the incident caused minor damage to the drum. This place the incident in Category A not D. SIPTU argued that the Company acted outside its own procedures in citing this incident as a Category D rather than a Category A.
Summary of Respondent’s Case:
The Company employs 88 staff. The Complainant is employed as a General Operative and has been employed since 2001. There was an incident on 31st July 2017 between 16.00 and 16.30 when the Complainant was using a drum lifter to lift a drum weighing 460kgs. The drum slipped through the clamp and fell to the ground. The Complainant reported that the lifter was defective. The Complainant continued to work for a further hour when he complained of his back and he went to the Hospital. He did not return to work until 25th September 2017 although he did attend an investigation meeting on 12th September 2017. The Company also sent an incident report to the Health and Safety Authority. Copy provided.
The Company Safety Officer inspected the drum lifter and the damaged drum. There was no fault found with the lifter and it was returned to production. The named Investigators met with a named witness on 1st August 2017 and the SIPTU Shop Steward attended with the employee but this witness evidence was deemed to be unreliable. They attempted to recreate a scenario that could result in a drum slipping through the lifter. This was done on 23rd August 2017.
The only time the drum slipped was when the clamp was loose.
They met with the Complainant on 12th September 2017 and the Shop Steward attended with the Complainant. The Complainant stated that the Clamp was not loose but he could not explain the incident. There has been no issue with the drum lifter since that incident with the Complainant being unable to offer any explanation for the drum slipping. The Investigators concluded the Complainant failed to follow proper manual handling procedures – the Complainant had failed to inform the Respondent he was taking medication for an unknown condition – the drum slipped through the clamp as the Complainant had failed to give his full attention to the task assigned to him. He was required to attend a manual handling refresher course as soon as possible and that the matter be referred for a Disciplinary Hearing.
The Complainant was informed on 25th September 2017 that the matter was being dealt with as a Group D matter under the Company Procedures. The Disciplinary Hearing took place on 4th October and the Complainant was represented by SIPTU, who confirmed at the Hearing that the investigation was procedurally correct and they accepted there was nothing wrong with the drum lifter. SIPTU argued that listing this incident as a Category D was too heavy. The Complainant was issued with a final written warning to remain for 12 months. This was appealed and the appeal hearing took place on 23rd October 2017. This was heard by the named CEO and the Product Manager, named. The Complainant accepted at the appeal hearing that the cause of the incident was his failure to properly secure the load.
The Respondent argued that the Complainant changed his position between the investigation and the disciplinary stages when he accepted that he had not tightened the clamp properly. The Complainant had suffered an injury resulting in him being absent for a period of 8 weeks.
Findings and Conclusions:
On the basis of the evidence, written submissions from both Parties I find that the investigation, disciplinary and appeals process was conducted with due regard to fair procedures. I note that while the Complainant denied he was at fault during the investigation he did finally accept his responsibility for the incident which resulted in an injury to himself and his absence from work for a period of 8 weeks.
I do not find in favour of the Complainant as I do not accept this was a Category A incident but was clearly a Category D incident as set out in the Company Disciplinary Procedures as the Complainant breached the Safety, Health and Welfare at Work Act, 2005 where an employee has a legal obligation to take reasonable care for his own safety and the safety of others.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
On the basis of the evidence and my findings above I do not find in favour of the Complainant in relation to his dispute referred to the WRC.
Dated: 24th July 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Dispute – Final Written Warning for 12 months – Health and Safety breach – Complainant injured – absent from work for 8 weeks.