ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00014499
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: 18/07/2018
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 13 of the Industrial Relations Acts 1969following 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 commenced employment as a driver, with the Respondent, a public transport company, in 2007. He acts as Shop Steward and Health and a Safety Representative. In November 2017 the Complainant was issued with a Final Written Warning (FWW) by the Respondent.
SIPTU, on behalf of their member, are appealing the FWW on the grounds that it was unwarranted and unmerited. SIPTU are seeking a recommendation that the FWW should be removed. The Respondent believes the sanction of a FWW was reasonable and there are no grounds for reducing or removing it.
Summary of Complainant’s Case:
The Complainant provided a detailed written submission.
The Complainant submits that on 17th July 2017 before taking annual leave he requested a new uniform and PPE from the Respondent. On his return from leave the Complainant checked about his PPE and he was told there was no record of an order on the system. He then placed an order for PPE himself. On 7th September when he enquired about the PPE and was told by a manager that no PPE would be issued to him until a safety inspection scheduled for 11th September was completed in a company depot prior to a training programme taking place there on 12th September.
The Complainant arrived in the depot for the safety inspection on 11th September and requested a copy of the company safety statement for the depot. He was told by the managers on site that they did not have the safety statement with them.
On 12th September 2017 the Complainant requested that he, in his capacity as Safety Representative, be excused from having to take part in the training, as he had safety concerns that had not been addressed and as Safety Representative it would be remiss of him to take part in the training after he had formally lodged a complaint with the Health and Safety Authority (HSA). The Complainant did say he would be willing to attend as an observer.
Later on the 12th September the Complainant attended the depot and posted SIPTU Notices stating; that he had concerns regarding safety, that he had raised these concerns with the Respondent and requesting that the scheduled training be postponed until a Risk Assessment could be carried out. Another Notice stated that he had submitted a complaint to the HSA.
A discussion took place between the Complainant and management during which the Complainant told his managers that he was not participating in the training due to his concerns about safety and the fact that he had no safety boots. He did re-iterate that he was willing to act as an observer.
The Complainant was told by a manager that if he did not take part in the training he would be suspended. The employee was given time to consult with his union official.
The Complainant was unable to contact his union official. In further discussion with the manager the Complainant stated that he was uncomfortable participating in the training while he still held safety concerns. He again looked for the Safety Statement for the Depot but was told that it could not be produced there and then. The Complainant told the manager that under the Safety Health and Welfare at Work Act 2005, the company was obliged to produce the Safety Statement when requested by an employee. The Complainant stated that if the company could not clarify his queries he could not take part in the training. The manager then suspended the employee.
The matter was subject of an investigation. The investigation found that disciplinary action was warranted. A disciplinary hearing took place on 24th October 2017. The SIPTU official representing the Complainant at this hearing raised concerns about how the investigation had been carried out.
The outcome of the disciplinary hearing was issued on 21st November 2017. The Complainant was issued with a Final Written Waring with a 12-month lifespan. The sanction was appealed; however, the initial decision was upheld.
The Complainant believes that the issuance of a FWW was unjustified and unwarranted as the employee, as the elected Safety Representative, had a duty to refuse to participate in training while he still had safety concerns about the training. The union believes section 27 of the Safety Health and Welfare at Work Act, 2005, provides protection against dismissal and penalisation of workers who raise reasonable concerns about imminent danger.
The union puts forward that as Safety Representative, the Complainant was trained to identify hazards and risks. He has also been trained as to what his rights as representative are and in what circumstances he would be justified in refusing to carry out instructions; this, according to the union, was such a situation and the Complainant should not have been penalised.
In all the circumstances, the union believe the Final Written Warning should be removed from the Complainant's personal file.
Summary of Respondent’s Case:
The Respondent provided a detailed written submission.
The Respondent submits that the Complainant was issued with a Final Written Warning for refusing to carry out his contractual duties only after a fair and thorough investigation and disciplinary process had taken place. In fact, the Respondent contends that a FWW was on the lower end of the available sanctions.
Due to a sizeable extension to the Respondent's operations in the summer of 2017, a significant programme of training was required for drivers. That training commenced in June 2017. The Respondent submits that that in the Collective Agreement between itself and SIPTU employees are, "expected to co-operate fully with training and development initiatives and such co-operation will be a condition of their employment".
In September 2017, the Complainant and other members of SIPTU raised several issues that they deemed sufficient to justify postponement of the driver training. The Respondent submits that the concerns raised had been addressed and confirmed that it had met its health and safety obligations. The Respondent also confirmed to further SIPTU correspondence that the owner of the depot had signed it off as "safe and fit for purpose" and that the building control authority had notified the builder that the certificate of compliance on completion was valid and therefore there was no reason to call off the training. This was re-iterated directly to the Complainant in an email of 12th September 2017.
The Respondent submits that on 12th September 2017, the Complainant was rostered to undertake his training but when he got to the depot where the training was to take place he refused to participate.
The Complainant spoke with Driver Team Leader and told him that he had submitted his safety concerns and that he was waiting for a response. A short time letter the Complainant received an email from the Respondent's HR Manager responding to the issues raised by the Complainant.
The Complainant then asked if a copy of the Safety Statement was available for him to read. The Driver Team Leader told the Complainant that he did not have a copy at that moment but that he would arrange for this to be provided to the Complainant. Despite this, the Complainant refused to undertake the rostered training.
During this conversation between the Complainant and the Driver Team Lead, the Complainant was advised that there was a pair of safety shoes in the first aid room for him.
As the Complainant was alleged to have refused to co-operate undertaking mandatory training, and therefore had allegedly breached a condition of his employment, the Respondent suspended the Complainant on full pay while an investigation took place.
An investigation was carried out which recommend that the matter be referred for a disciplinary meeting.
A meeting took place on 24th October 2017. The Respondent submits that the disciplinary process was protracted because the Respondent needed to investigate a conflict of evidence which arose between the Complainant and the Driver Team Lead.
On 21st November 2017, the Respondent wrote to the Complainant informing him that the allegation that he had failed to carry out his contractual duties by refusing to participate in rostered training, was "proven" and, taking mitigating factors into account, he was being issued with a FWW.
The Complainant appealed this decision but was unsuccessful in his appeal.
The Respondent submits that it carried out a thorough and fair investigation and that the Complainant was provided with all relevant information and documentation throughout the process.
The Respondent also submits that the sanction imposed was relatively lenient in the circumstances and that there is no basis for the Complainant to request that the sanction in this case be reduced or withdrawn.
Findings and Conclusions:
Having considered the evidence of both parties, together with the submissions filed, I make the following recommendation:
The Final Written Warning as issued to the Complainant should stand.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the Final Written Warning as issued to the Complainant should stand.
Workplace Relations Commission Adjudication Officer: Roger McGrath