ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00019743
A group leader
A utility company
Anne Flynn SIPTU
Robin McKenna IBEC
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: 29/10/2019
Workplace Relations Commission Adjudication Officer: David Mullis
In accordance with Section 41 of the Workplace Relations Act, and 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.
In this dispute the Complainant is contesting the severity of the discipline imposed on him by the Respondent as being disproportionate in the circumstances.
The Complainant has worked for the Respondent company for 9 years with 6 of these years as a shift Group Leader.
Summary of Complainant’s Case:
The Complainant is employed by a utility company in the business of generating and supplying electricity. He is a group leader.
On the 19th July 2018 and a member of his team were instructed to carry out an isolation on the junction box of a Fuel Oil Transformer. It subsequently transpired that when the contractors authorised to perform the work on this line proceeded to perform their work they found that one of the lines, that should have been disabled, was live. This was reported to the respondent by the personnel due to work on the line. They were advised to withdraw and the line was closed down until it was disabled as was planned.
The investigation into this incident was commenced and on the 3rd August 2018 the Complainant says he was on duty when he was approached by the company’s Safety Manager and the Safety Representative. They asked him to do a “walk-down” of the line with them so that they could identify how and why the line was not isolated. The Complainant said that he refused comply with this request, but said he would perform the walk-down in the company with his colleague who was on duty when the original isolation was performed. The safety Manager wanted each of the employees to conduct the walk-down separately.
This then led to a loud argument between t he Complainant and his manager, who had, by then been brought into the discussion.
In the end and in order to close out the investigation the walk-down was completed with the Complainant and his work colleague doing this together.
They make the point that there are other checks and that nobody was injured in the circumstances. Notwithstanding this and apologies issued by the Complainant about what had happened and about the heated argument at the meeting referred to above, he says he was issued with a final Written Warning, to remain on his file for 12 months.
The complainant says that he has an exemplary record and that this level of discipline is not proportionate in all the circumstances.
He said he would have expected advance notice of the walk-down, some more detail on the protocol involved in carrying out the walk-down, the time of the walk down and who was going to be responsible for overseeing the walk down.
He also advised of a background dispute going on between himself and his manager, the same manager with whom he had the heated argument concerning the walk-down. He said that this had been going on since December 2017 and that the company could have brought the issue to conclusion earlier. He felt that it influenced his manager in his attitude on the current issue.
He says that he appealed the discipline imposed, to no avail, and then referred the issue to the WRC under Section 13 of the Industrial Relations Act, 1969.
In this his he says that by way of remedy he expects that the sanction imposed will be expunged from his file and that he is restored to an unblemished record.
Summary of Respondent’s Case:
The facts leading up to the imposition of the sanction are not disputed.
They say that they advised the complainant following the appeals that as he had submitted his final internal appeal under 5 headings they would respond using these headings:
1. Severity of sanction.
They said that the sanction did not relate to the heated argument, but to a reasonable request from colleagues to the Complainant to complete a walkdown in the manner prescribed, as it related to a serious safety incident. They say that when he refused to do as requested it was open to them, in such circumstances, to terminate the contract of the Complainant, but they stepped back from that.
2. Mitigating Circumstances.
They say that in acknowledging that the Complainant was separately dealing with an ongoing grievance, that that was in a process and should have no bearing on the outcome of this dispute. They say that the Complainant acknowledged, at the appeal hearing, that the request from The Safety Manager and his own manager was reasonable in the circumstances.
Their decision in this regard was that there was no connection between the two issues and there was a defined process for dealing with both.
3. Intent to Comply.
While thy subsequently heard that the Complainant intended to comply with the request made of him to complete the walk-down individually, he did not agree to this at the meeting with the Health and Safety manager and his own direct manager, which, in turn, gave rise to the heated conversation and the refusal to do as requested.
4&5. Record and Subsequent Actions.
The Respondent acknowledges The Complainant’s unblemished record, but say that this is an issue about safety and the understanding that all employees have about its place and importance to the organization. They say that the Complainant refused twice, in the same meeting, to do as he was requested. They say that this was a reasonable request and that, on that basis they cannot vary the sanction.
Findings and Conclusions:
At the centre of this dispute is the issue of Safety. The safety of employees, managers, contractors and visitors. It, I believe is a potentially dangerous industry type if safety and how it is managed and implemented is not robust.
While I understand the disappointment of the Complainant at interrupting his previously impeccable record I am bound to say that adhering to instructions in relation to safety are not negotiable. This also applies to investigations into how matters went wrong when they did.
I do not, therefore, find for the Complainant.
I would like to presume that the Respondent communicates with all employees on Safety and it’s place in the business, on a regular and rostered basis and not just in the aftermath of an issue such as this. If this is not the case -and I’m not saying it is – regular and rostered communication should be put in place.
The procedures for conducting safety walk downs should not only be written but practiced so that doing them would be second nature should the need arise.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
Consistent with the above Findings, I do not find for the Complainant.
Dated: 27th November 2019
Workplace Relations Commission Adjudication Officer: David Mullis