ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00013900
A Manufacturing Company
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: 13/12/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
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 Employee commenced work with the Employer, a manufacturing company, on 7 April 1987, in the role of Storeman.
The Employee’s claim, which is taken under Section 13 of the Industrial Relations Act, 1969, relates to a first written warning he received following an incident with a forklift truck in November 2017.
Summary of Complainant’s Case:
In his oral evidence at the Hearing, the Employee confirmed that, while he was driving a forklift truck, an incident took place where damage was caused to racking in the warehouse. He stated that the cost of the damage was about €2,000. The Employee confirmed that nobody was injured in this incident.
While accepting that he caused the damage, the Employee stated that he did not do this on purpose and was trying to do his best at the time. He stated that he was trying to rescue product when one pallet fell on top of another. According to the Employee’s evidence, as the other person working in the warehouse was on annual leave at the time, he felt he was doing the right and best thing in the circumstances, in trying to rescue the product.
The Employee further stated that he notified his boss at the time and reported the incident on the in-house accident reporting system.
According to the Employee’s evidence, another incident took place, three days later, when he put a pimple mark on a bar. He stated that he also reported this incident at the time.
The Employee stated that, as a result of the above incidents, he was issued with a First Written Warning, which his Trade Union sought to appeal but without success.
The Employee stated that he was devastated to receive the First Written Warning. He further stated that as a result of this he was on sick leave for three months after the warning was issued. He also submitted that he was being treated for a medical condition at the time which was exacerbated by the receipt of the written warning.
According to the Employee’s evidence, another incident occurred at the end of June/beginning of July 2018, as a result of which he was invited to attend a disciplinary hearing. The Employee stated that as a result of this incident he received a final written warning. The Employee appealed this decision and, in his view, a very good case was put forward. He further confirmed that personnel from the Employer’s senior management team in Dublin conducted the Appeal Hearing. However, the appeal was rejected.
The Employee also contended that there were some mechanical issues with the steering mechanism on the forklift for a year before the accident in November 2017. He further stated that the company took the forklift out of action after the second incident in June/July 2018. However, the Employee did state that he could not say whether or not this fault had an impact on the accidents that occurred.
The Complainant stated that he has been on sick leave since the incident in July 2018.
Summary of Respondent’s Case:
The Employer did not attend the oral hearing, as they had been contacted, in advance of the Hearing, by the Employee’s legal representative seeking their (the Employer’s) agreement to an adjournment of the hearing pending potential discussion between the Employee and the Employer.
The Employer’s legal representative made contact on the day of the hearing to advise the reason for their non-attendance and to confirm that (a) they had been prepared to travel to the Hearing and (b) they were strongly defending their position with regard to the issuing of the warning to the Employee, given the circumstances of the incidents involved.
Findings and Conclusions:
Events surrounding the Oral Hearing;
Before proceeding to consider the merits of the Employee’s claim, is appropriate to record the events surrounding the oral Hearing into the claim. On the day prior to the hearing the Employee’s legal representative contacted the WRC and requested an adjournment of the Hearing. This request was rejected.
The Employer’s legal representative, who, as has already been stated above, had consented to the adjournment request, was unaware that the request had been rejected and, therefore, did not attend the Hearing on the understanding that it was not going ahead. The Employer’s legal representative made contact on the morning of the Hearing to advise the reason for their non-attendance. At that point in time, which was well in advance of the scheduled starting time for the Hearing, I was unaware of whether or not the Employee and/or his legal representative would be in attendance.
The Employee presented himself at the appointed time for the Hearing. The Employee further stated that he contacted the WRC the previous evening and had been advised to attend. The Employee’s legal representative was not in attendance; however, he was accompanied by a friend. The Employee was most anxious to have an opportunity to submit and speak to his claim,
Taking all of the above into account, I considered it appropriate to hear the Employee’s evidence, given the prevailing circumstances and proceeded to hear his submission.
Consideration of the Employee’s claim:
Based on the evidence submitted by the Employee, it is clear that the issuing of the First Written Warning, in relation to the incidents in November 2017, had a significant impact on him. I am satisfied, from his evidence, that there was nothing deliberate or intentional in the Employee’s actions and in fact, those actions, particularly in relation to the November 2017 incident, appear to have been motivated by a desire to do the right thing in challenging circumstances.
However, based on the Employee’s own direct evidence, the incidents in November 2017 did result in significant damage to the Employer’s property. Given that the Employee accepts responsibility for causing this damage, I find the issuing of the First Written Warning to be a reasonable and proportionate sanction to impose, at the time.
In normal circumstances, the sanction imposed in relation to the November 2017 incidents would, at this stage, have been expunged from the Employee’s personnel record. However, the occurrence of another incident in June/July 2018 led to a further disciplinary procedure being initiated.
It should be noted, for the record, that this second incident took place after the Employee had submitted his claim to the WRC in relation to the November 2017 incident. Consequently, that matter was not properly before me for consideration and, in particular, given that the Employer was not in attendance on the day of the Hearing, I am somewhat reluctant to opine in relation to it.
However, notwithstanding the above, I note from the Employee’s own evidence that the sanction issued for the 2018 incident was appealed. In addition, from the evidence presented by the Employee, it appears that appropriate process was applied to the hearing of his appeal.
With regard to matters pertaining to disciplinary procedures, it is not the role of an Adjudication Officer to decide whether or not a sanction imposed on an employee was right or wrong. Rather, it is the role of the Adjudication Officer to consider whether the employer had reasonable grounds to initiate the disciplinary procedures in the first instance, whether they applied fair procedure in the conducting of the process and whether the sanction imposed, as a result, falls within a range which might be considered reasonable and proportionate, in all of the circumstances pertaining to the matter.
Notwithstanding the Employee’s obvious dissatisfaction with the outcome of the situation pertaining to both the November 2017 and June/July 2018 incidents and the clear impact this has had on him, I can only conclude that the Respondent’s conducting of the disciplinary procedures pertaining to these incidents was appropriate, fair and proportionate in all of the circumstances.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Employee’s claim is not well-founded.
I appreciate that this outcome, may add further to the Employee’s dissatisfaction in this matter. However, I would hope that he can recognise that his grievance has been fully and thoroughly considered both as part of the Employer’s internal procedures and now through external, independent adjudication.
Consequently, I would recommend that the Employee give serious consideration to accepting the situation as it currently stands and, for the remainder of the time left on his sanction, would redirect his efforts to restoring his working relationship with his employer to that which clearly existed prior to these incidents.
Dated: 29th March 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Industrial Relations Act
First Written Warning
Final Written Warning