ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00017721
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: 17/01/2019
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 since 17th August 1998 with the Respondent Company. He is paid €704.75 gross per week. The Complainant referred a dispute to the Workplace Relations Commission on 26th October 2018 in relation to a Final Written Warning issued to him in July 2018.
Summary of Complainant’s Case:
The Complainant has been employed since 1998 as a General Operative with the Respondent. He usually works alone but is contactable by the Respondent as he uses his own mobile phone for that purpose. There was a tragic accident in late 2017 when a lone worker died in an accident. Following that accident, the Complainant was informed he would have to carry a company mobile phone and that failure to carry the phone would be in breach of Health and Safety Legislation. The Complainant initially accepted the Company Phone but on reflection he could not understand how this phone could be a PPE to be used to contact their managers in an emergency or for other business requirements. The Complainant engaged with the Company but on 23rd February 2018 he refused to take the mobile phone and informed the Respondent that he was contactable on his own mobile phone. A complaint was made against the Complainant and he was subject to investigation for his refusal to accept the phone and for breach of Health and Safety protocol. The outcome was the Complainant was found to be in breach of Health and Safety. The Investigators relied on the Document from 2015 Standard Operations Procedures no 122. The matter progressed to a Disciplinary Hearing. Following this Meeting the Complainant was issued with a Final Written Warning to remain on his File for a period of 18 months. The Complainant appealed this Decision, but the outcome was to uphold the Final Written Warning. The issue was referred to the WRC.
SIPTU, on behalf of the Complainant argued – Fair procedures and natural justice not fully observed – all mitigating circumstances not considered and the sanction was not warranted or was too severe and disproportionate. In summary he argued that the Head of HR ,named, who issued the Final Written Warning was not involved in the Disciplinary Process , the Complainant was not provided with the Safety Statement in advance and that the Complainant’s Line Manager, named, who was responsible for implementing the decision that a mobile phone is a PPE was involved in the Disciplinary Panel. Siptu also argued the mitigating circumstances not taken into account as being in summary – there was a delay of two years in implementing the SOP no 122 from 2015 to 2017 – PPE not proved as being valid, legitimate and stands up to testing – the Complainant was not provided with any risk assessment or safety statement in relation to these mobile phones – the Complainant had his own mobile phone – he was classified as a Lone Worker but does not always work alone – the Respondent did not fulfil specific obligations under the Safety, Health and Welfare at Work Regulations No 299/2007 in relation to PPE’s.
SIPTU argued that the sanction of a Final written warning was too severe and disproportionate as the Complainant had no other disciplinary sanction on record when this issue arose.
The Complainant is seeking that the Final Written Warning be removed from his File.
The Complainant confirmed at the Hearing that he had since accepted the Company Mobile Phone.
Summary of Respondent’s Case:
The Respondent outlined in detail the decision of the Respondent to proceed down the informal route and arranged a meeting with the Complainant and HR which took place on 11th January 2018 during which the reasons and rationale for the requirement by the Complainant to carry the Company Phone provided to him and to charge it and carry it with him at all times while working. Details of the Health and Safety requirements were also outlined to the Complainant at this meeting which is documented. Detailed minutes of this meeting were provided to the Hearing.
The Respondent stated that the Complainant had been offered the Company Mobile Phone for a third time after this meeting but he again refused to accept it. It was following this third refusal on 23rd February 2018 that a complaint was made to HR concerning the Complainant.
The Respondent also outlined to the Hearing that the Disciplinary Procedures were ratified in April 2017 and were therefore a Collective Agreement with SIPTU and the Respondent. The Investigation Meeting was conducted in line with the agreed procedures and the Complainant was accompanied by SIPTU at this meeting. Detailed Minutes of this meeting were provided to the Hearing.
The Respondent also referenced the Safe Operating Procedure No 122 of December 2015 and this showed evidence of receipt of this by the Complainant which he signed on 16/9/2016.
The Respondent stated the Complainant was invited by letter dated 31st May 2018 to attend a Disciplinary Hearing on 15th June 2018 and that this set out the purpose which was to consider two allegations concerning breach of Health and Safety and his failure to carry out a reasonable instruction of the employer. He was provided with the outcome of the Investigation and the Respondent’s Disciplinary Policy and Section 1 from the Respondent’s Safety Statement. This was conducted by the named Senior Engineer and an external HR Manager from a named Company. He was afforded his right to be accompanied at this Hearing. The Disciplinary Panel recommended that a Stage 3 – Final Written Warning be issued to the Complainant and the Complainant was informed of the Decision by letter dated 1th July 2018. The Complainant was afforded a right of appeal. The Complainant did appeal by letter dated 20th July 2018 and noted the grounds of appeal as Fair procedures and natural justice not fully observed – mitigating circumstances not taken into account and sanction was not warranted or was too severe. In relation to both allegations the decision of the Appeals Panel was to uphold the Stage 3 – Final Written Warning.
Findings and Conclusions:
On the basis of the evidence presented to the Hearing by both Parties including substantial minutes and records of all meetings held I do not hold in favour of the Complainant in relation to this dispute.
It is clear from all the evidence presented that the Complainant was afforded all opportunities by the Respondent to comply with the Respondent’s instruction that he carry a company mobile phone which should be charged and carried by him at all times while at work in compliance with health and safety requirements of the Respondent.
It is also clear that the Investigation, disciplinary and appeals process was conducted in line with the Collective Agreement of April 2017 and was also in accordance with S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 which was signed by the then Minister Ms Mary Harney on 26th May 2000.
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, in my findings above I do not find in favour of the Complainant in relation to this dispute.
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Industrial Relations – appeal of Final Written Warning – recommendation not in favour of Complainant.