ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011558
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Operative | A Local Authority |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00015458-001 | 31/10/2017 |
Date of Adjudication Hearing: 10/01/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Procedure:
In accordance Section 13 of the Industrial Relations Acts 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:
The Complainant commenced employment with the Respondent, a local council, in 2000 and is assigned to the Waste Management Section of the council. He is a General Operative with driving responsibilities. The Complainant lodged a complaint with the WRC on 31st October 2017 under section 13 of the Industrial Relations Act, 1969. |
Summary of Complainant’s Case:
The Complainant provided a detailed written submission. The Complainant submits that on 6th April 2017, while on sick leave, he was walking near his home when a council van pulled up beside him. The driver of the van was a colleague of the Complainant. The driver asked the Complainant to accompany him in the van to help him find a particular address. In oral evidence, it was stated by the Complainant that the van had a separate cab which in effect insulated him from seeing and hearing what was going on around him. The Complainant remained in the van while the driver made two stops. The Complainant was unaware what was going on outside the van when it was stopped as he was filling in forms to do with a personal matter. It later transpired that the driver of the van and another colleague, who had been following behind on a moped, were dumping furniture illegally. Following a complaint from a member of the public the council initiated an investigation into the incident and interviewed the Complainant and the other two employees. Following the investigation, the council's disciplinary process was invoked for all three employees. During the disciplinary process both the driver and the other employee stated that the Complainant was not in any way personally involved with the illegal dumping and had been in the van to simply give directions; this was accepted by the council. Notwithstanding the fact that the Complainant was on sick leave on the day in question the council believed despite not being involved in the illegal dumping the Complainant should have been aware of what was going on and reported it. The Complainant was issued with a Written Warning and suspended for two days without pay. This sanction was appealed and the suspension without pay was reduced to one day. The Complainant is appealing the disciplinary sanction taken against him as he did not have any involvement in the illegal dumping. It is his contention that as he had not been involved in any conversation about the removal of the furniture and had no hand, act or part in the removal of the sofa and mattress which were dumped, he should not have been punished as he was by the imposition of a Written Warning and day's suspension. The council, according to the Complainant, has not been able prove that he was aware that illegal dumping was going on when he was in the van. In concluding, the Complainant finds it abhorrent that any worker could be disciplined for an incident he was not involved in or knowledge of while it was occurring or thereafter. The Complainant wants the disciplinary sanctions removed from his record. |
Summary of Respondent’s Case:
The Respondent provided a detailed written submission. The Respondent submits that this case relates to an incident in which two employees of the council, both of whom work in the Waste Management area, engaged in illegal dumping while driving a council vehicle. The Complainant was a passenger in the vehicle when it called to a private residence where the two other employees removed bulky furniture from inside the house and shortly after abandoned the same furniture on a public footpath. Although the Complainant did not take part in the actual illegal dumping itself, he was present during the collection and later illegal disposal of this furniture, which it is clear was not the normal activity of Waste Management employees. It is management's contention that the Complainant, while not directly involved in the illegal dumping, was present and aware of the actions of his colleagues, but took no action to report this illegal behaviour. Following a thorough investigation and disciplinary process the Complainant was issued with a Written Warning and suspended for two days. On appeal the suspension was reduced to one day but the Written Warning was left stand. In concluding, the Respondent submits that the council devotes a large amount of its available resources each year to dealing with problems associated with illegal dumping. For council employees to illegally dump furniture onto a public footpath is totally unacceptable and injurious to the council. According to the Respondent, for the Complainant to indicate that while he was not involved in the illegal dumping, but was in attendance in the van when the furniture was collected and later abandoned and not know what was happening is not in any way credible. It is the Respondent's view that the sanction taken against the Complainant was justified and should stand. |
Findings and Conclusions:
The basic facts of this case are not in dispute and no objection was raised by the Complainant regarding the disciplinary process utilised by the Respondent in dealing with the matter. The dispute boils down to whether it is reasonable for the council to take the view that the Complainant could not have known what was going on when the illegal dumping took place and that if he did know he should have reported the matter as was his duty. I tend to agree with the council's view. I too find it hard to believe that anyone could sit in a van with colleagues and not know in some way what was going on around him. It is hard to believe that when the van stopped and the furniture was dumped on the footpath that the Complainant would not have glanced in a mirror or asked his colleagues about what was going on. If it is accepted that he did know what was going on, it was his duty to either stop the illegal act or at the very least report it to his superiors. In the circumstances, I believe the sanction of a formal Written Warning and one day's suspension without pay is reasonable. |
Recommendation
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute and in the circumstances I recommend that there be no change to the Disciplinary sanction already imposed.
Dated: 16 April 2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Disciplinary sanction |