ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00010392
| Complainant | Respondent |
Anonymised Parties | A local authority employee / plumber | A local authority |
Representatives | Barry O'Donoghue, Ferrys Solicitors |
|
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-00013804-001 | 07/09/2017 |
Date of Adjudication Hearing: 06/12/2017
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969,this dispute was assigned to me by the Director General. I conducted a hearing on December 6th 2017 and gave the parties an opportunity to be heard by me and to present to me evidence relevant to the dispute.
The Complainant attended and was represented by his solicitor. For the Respondent, the Head of HR, the Employee Relations Manager, a member of the HR Department and the Area Officer for the housing section attended.
Background:
The respondent is a local authority and the complainant commenced in 2009 as a plumber in the housing section. He was promoted to the grade of acting foreman in September 2012. From around 2010, the ban on recruitment in the public service prevented the filling of vacancies on a permanent basis and this is the reason that he was in the foreman role in an “acting” capacity. On May 23rd 2017, an incident occurred in the housing depot where the complainant worked and an employee was injured. To comply with the requirement for anonymity in this decision, I will refer to this employee as “the carpenter.” The carpenter said that when he was going down the stairs in the depot, the complainant pushed him in the back and he fell. He said that when he was on the ground at the bottom of the stairs, the complainant kicked his head. A second employee reported that before this incident happened, on coming up to the carpenter and another colleague at “the hatch” where job tickets are distributed, the complainant, rather than walk around them, barged through them and made a move against the carpenter, “giving him a shoulder.” The investigation into this incident uncovered another issue. In September 2016, the complainant received a verbal warning for the unauthorised use of a council van which was assigned to a colleague. When the assault on the carpenter was being investigated, an allegation that the complainant threatened the user of the van was brought to the attention of the local management and it was decided that this matter would be investigated also. A disciplinary investigation resulted in a sanction of a final written warning, suspension without pay for 10 days, standing down from the grade of acting foreman and a transfer out of the depot where the complainant had been working. The complainant appealed against the severity of the sanction and the Head of HR reduced the suspension from 10 to five days and gave an undertaking to examine the possibility of reinstatement to the acting foreman position in six months, taking account of the complainant’s record during that period. In his submission to the WRC, the Complainant said that he was “subjected to a disciplinary and appeal process that was fundamentally flawed and failed to adhere to the most basic of fair procedures.” He also contends that, even if the incidents had been substantiated, the sanction was disproportionate. |
Summary of Complainant’s Case:
The complainant’s solicitor set out his arguments against the sanction imposed by the head of HR after the appeal meeting on August 9th 2017. His position can be summarised as follows: He claims that the carpenter made a false allegation about being pushed down the stairs and kicked in the head; In respect of the “barging” and “shouldering” incident which took place at the hatch, while two employees described the complainant’s behaviour as “aggressive,” “rude” and “odd,” the carpenter said that he “brushed against” him when he was passing him. In relation to the use of the van, this issue was dealt with in September 2016, when the complainant received a verbal warning and it should not have been resurrected. The person investigating the allegation of a threat to the van driver relied on information supplied by the fleet management unit to determine where the van was at specific times. The complainant contends that this is a breach of procedures as the information was not provided to the complainant for his response before the investigation report was completed. While the investigating manager concluded that “it is not possible to find that an assault took place,” he referred all the issues to the HR Department for a disciplinary investigation. The complainant was not provided with a copy of the investigating manager’s report before he attended the first disciplinary meeting. The complainant contends that this was another breach of fair procedures. |
Summary of Respondent’s Case:
The representatives for the local authority summarised their position with regard to the events of May to August 2017 as follows: The carpenter reported to the Area Maintenance Officer that on May 23rd, he was assaulted by the complainant when he was pushed down the stairs in the depot where they both worked. He was injured in the face and head and attended a hospital emergency department for treatment. He reported the assault to the Gardaí. The Maintenance Officer reported the matter to the Administrative Officer in charge of staffing and an investigation commenced. On June 7th 2017, the complainant was placed on special leave pending the outcome of the investigation. During the course of the investigation, a separate allegation of threatening behaviour by the complainant against a different colleague came to light. This behaviour arose from the complainant’s use of the council’s vehicles outside working hours. As part of the investigation, a meeting took place with the complainant and his union representative on June 14th. The complainant denied that he assaulted the carpenter, or that he had threatened the authorised user of the council’s van. The investigator concluded that, in respect of the assault on May 23rd, apart from the carpenter, the only other witness at the scene could not corroborate the facts. Information on the whereabouts of the van alleged to have been used by the complainant was requested from the fleet management company. From the information provided, the Administrative Officer found that the matters he had investigated warranted an investigation in accordance with the council’s disciplinary procedure and on June 20th 2017, he sent his report to the Employee Relations (ER) Manager and the Head of HR. On July 13th, the complainant attended a meeting with the ER Manager at which he was accompanied by his trade union representative. Following consideration of the issues, on July 17th, the ER Manager wrote to the complainant with a detailed response to the matters under investigation. Referring to the allegation of assault on the carpenter, The ER Manager stated: “In relation to the first allegation, it was accepted that while (the carpenter) had sustained an injury to his head and elbow, there were no witnesses to this alleged assault and it is a case of one man’s word against another and no action will be taken on this matter. “In relation to the second incident, while witnesses did state that you ‘barged through’ (the carpenter) as he was speaking in the corridor, (the carpenter) himself stated that you only ‘brushed off’ him. Therefore I do not intend to take any action in relation to this incident.” The investigation into the complainant’s unauthorised use of the company van and the allegation that he threatened the van driver concluded that his conduct in this respect amounted to gross misconduct. The following disciplinary measures were imposed: The complainant was issued with a final written warning; He was suspended without pay for 10 days; He was stood down from the role of acting foreman; He was transferred to a different depot. The complainant appealed this outcome to the Head of HR and a meeting took place on August 9th 2017. The Head of HR took a different view of the allegation of assault on May 23rd, when he stated in his letter of August 11th: “I am satisfied that a serious incident took place in (location of the depot) on the date in question which could have resulted in serious injury to a staff member.” In relation to the use of the council van, the Head of HR stated: “I do not accept your explanation in relation to matters uncovered during the course of the investigation, namely the improper use of council fleet.” Despite these findings, in view of the complainant’s previous good record, the disciplinary sanction was amended so that the period of suspension was reduced to five days and the complainant’s role as acting foreman was to be reviewed in six months, and, depending on his work record, he could be reinstated. |
Findings and Conclusions:
I have considered the submissions and the evidence presented by both sides at the hearing on December 6th. I find that it is reasonable for the council to conclude that an assault occurred on May 23rd 2017 during which the complainant pushed the carpenter and he fell down the stairs, suffering certain injuries. In considering this matter, the employer is not constrained by the requirement to prove beyond reasonable doubt that the incident occurred, but, having carried out an investigation, to have a reasonable belief that it occurred. The fact that the only witness was the carpenter does not remove the likelihood that the incident happened as it was reported. I find that nothing turns on the different descriptions of the incident in the corridor, described by the carpenter as the complainant “brushing past” him and by others as “barging through the group.” In respect of the unauthorised use of the council van, this was admitted by the complainant. While he denied that he threatened the driver of the van, at the investigation in June 2017, the driver confirmed that he had been threatened about not giving the complainant permission to use the van. Regardless of the fact that the complainant said that he was issued with a verbal waning in September 2016 about the use of the van, new and more sinister information came to light in June 2017 in relation to threatening another employee. It is my view that it was appropriate for this to be investigated. I do not accept the complainant’s contention that this was a “witch hunt” by the two employees who reported the assault and the threatening behaviour. No evidence has been submitted to show why the employees in question had any reason to make false reports against the complainant. The complainant contends that there has been a breach of fair procedures as he was not given a copy of the fleet management report requested by the council as part of the investigation into his use of the van. At the meeting on June 14th, the complainant was informed that information would be sought from the fleet management company; however, there is no evidence that he asked for a copy of the information in preparation for the disciplinary meeting on July 13th. He also claims that fair procedures were not followed when he was not given a copy of the report of the Administrative Officer in advance of the disciplinary meeting. The letter inviting him to the disciplinary meeting was sent on July 4th and specifically stated that he was requested to attend for interview “in relation to a report received from Local Management regarding an incident in the workplace between you and another staff member.” While he received this invitation on July 4th, there is no evidence that he or his trade union representative looked for a copy of the report or that the management refused to provide it in advance of the meeting on July 13th. It is my view that the fact that he didn’t get these reports in advance of the disciplinary meeting does not compromise the procedure, as the information contained in the reports was provided at the meeting itself. It is well established that what is required in disciplinary investigations is a fair procedure, which need not be a flawless procedure, and, that where an employee has appropriate and professional representation, a fair hearing will result. The complainant also availed of his right to appeal the outcome of the disciplinary investigation and, on this basis, it is my view that he received a fair hearing. The complainant’s solicitor referred to the fact that the initial investigation concluded that there was no evidence of an assault on the carpenter, but the matter was put forward for a disciplinary investigation. While the investigator found that the only evidence of the assault was the carpenter’s evidence, in the final paragraph of his report he stated: “Due to the gravity of the maters outlined I am referring the entire matter to Human Resources to investigate.” It is clear therefore, that, while the investigator was clear that the only witness to the assault was the person who alleged that he had been assaulted, the matters, comprising the assault, the unauthorised use of the van and the alleged threat against the driver of the van were grave enough to refer to Human Resources for a separate investigation. The final outcome of this entire process, ending with the outcome of the complainant’s appeal on August 11th 2017 was a final written warning, a suspension without pay for five days, standing down from the role of acting foreman pending a review in six months and a move to a different depot. The requirement of the employer in this instance is to consider the facts and based on their reasonable belief about what occurred, to impose an appropriate sanction. It is my view that, faced with the facts, it would not have been unreasonable for the respondent to have dismissed the complainant and I find that the outcome of the appeal should stand. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
On the basis of my findings set out in the previous section, I find that there is no merit in the case made by the complainant that the disciplinary and appeal process was fundamentally flawed or, thatthe disciplinary sanction was disproportionate. I therefore recommend that there should be no alteration to the outcome of his appeal, communicated to him by the respondent on August 11th 2017. |
Dated: 1st May 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Gross misconduct, disciplinary sanction |