ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000175

Dispute for Resolution:

Date of Adjudication Hearing: 04/07/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 and the Workplace Relations Act 2015, following referral to me by the Director General, I inquired into the aforesaid dispute received by the Workplace Relations Commission (hereinafter ‘WRC’) on 15^th October 2015 and gave the Parties an opportunity to be heard and to present any relevant evidence. I note that there was consent from the Respondent to the investigation of this dispute by an Adjudication Officer. This matter had to be adjourned on two prior dates but proceeded to hearing on 4^th July 2016. 

Complainant’s Submission and Presentation:

The Complainant sought resolution of a dispute under Section 13 of the Industrial Relations Act 1969, pertaining to an internal disciplinary process which he contended was unfair. In particular, he sought removal of the final sanction of a written warning and one day’s suspension without pay.

The Complainant’s Union Representative outlined the background to the dispute. The Complainant has been employed as a driver for the Respondent for twenty four years without any disciplinary issues. She confirmed that owing to an ongoing issue with his back, the Respondent had facilitated the Complainant with vehicles which had a suspended driver’s seat and hence were not as hard on his back. Although they were being phased out, the Respondent still had in service a number of older vehicles without suspension in the driver’s seat but which were deemed mechanically sound. On prior occasions when the Complainant had been assigned one of these older vehicles and requested a replacement with a suspended seat, he had been accommodated accordingly. However, when this scenario arose on 27^th May 2015, he was refused a change of vehicle by his supervisor without explanation. He was suspended from duty that day and requested to attend a disciplinary hearing. A second incident occurred on 13^th July 2015 when he completed his Driver’s Sign-off Sheet listing the driver’s seat as “not fit for purpose” and requested a change of bus. A dispute arose with his supervisor about the seat who felt that it was in good condition and as a consequence the vehicle was not changed and the Complainant did not complete his shift.

On 16^th July 2015, the Complainant attended a disciplinary hearing dealing with both incidents which were treated as ‘gross misconduct’ in the presence of a Shop Steward. Arising from the hearing, he was issued with a final written warning and five days suspension without pay. He appealed the decision on the basis that the seats in the vehicles in question were faulty and the sanction imposed was too severe. His appeal was heard on 28^th August 2015 by an Appeals Board, again with a Shop Steward present, and the sanction was reduced to one day’s suspension and a written warning.

The Complainant’s Representative submitted that it was unfair for the Respondent to refuse without explanation the Complainant’s reasonable request for a vehicle with a suspended seat, given that he suffers from back trouble and finds that certain driver’s seats exacerbate pain in his lower back. It was also contended that it was unfair to subject him to disciplinary action for gross misconduct in circumstances where such requests had previously been accommodated by the Respondent. It was further contended that the initial disciplinary hearing was unfair in that the disciplinary action arising from the hearing was directed by the same person who had investigated the matter.

When questioned, the Complainant confirmed that he had never undergone any medical or other examination or treatment for his back problems and had not formally notified the Respondent with any medical report or certification regarding same. However he confirmed that he would be willing to undergo an assessment with the Respondent’s Chief Medical Officer (CMO) for further investigation and being accommodated as deemed necessary. He also accepted that he had refused to drive the vehicles in question on both occasions but he felt that was justified given his ongoing back condition. He denied that he had given an undertaking to drive all of the Respondent’s vehicles after the initial incident pending the disciplinary hearing. The Complainant’s Representative was unable to point to any procedural unfairness in relation to the appeal and accepted that the disciplinary process in question had been agreed between the Respondent and the trade unions representing its employees. No further evidence of the alleged unfairness was proffered.

Respondent’s Submission and Presentation:

The Employee Relations Manager for the Respondent contended that the disciplinary action in question against the Complainant had been justified in circumstances where he had refused to operate the vehicles in question, severely discommoding the Respondent. The Complainant was facilitated with a vehicle with a suspended driver’s seat whenever possible but replacements had not been available on the dates of the incidents in question. After the first incident, it was also contended that the Complainant’s suspension had been lifted on the basis that he had given an undertaking to drive all vehicles pending his disciplinary hearing. He also refuted any alleged unfairness with the disciplinary process and submitted that the Complainant had been afforded an appeal with an independent Chairman as agreed between the Respondent and the trade unions.

The HR Manager confirmed that the written warning on the Complainant’s file is not a final written warning and was due to be removed next month. Once removed, it could not be used against him in relation to any future disciplinary action. She also confirmed his good work record to date.

In relation to both Parties moving forward with a view to avoiding further issues arising from the Complainant’s reported ongoing back issue and requirement for a suspended seat, the Employee Relations Manager and HR Manager both confirmed that they would have no difficulty inviting the Complainant for an assessment with the CMO and addressing any accommodation issues arising.

Reasoning and Recommendation:

In defining the parameters of my remit in relation to disputes regarding internal disciplinary matters such as the instant dispute brought under Section 13 of the Industrial Relations Act 1969, I am guided by the Labour Court decision in Bord Gais Eireann -v- A Worker AD1377 which stated: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.” I am also guided by S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) which requires that the procedures for dealing with disciplinary matters reflecting the varying circumstances of enterprises/organisations must comply with the general principles of natural justice and fair procedures.

I therefore do not propose trespassing upon the merits of the disciplinary action in question against the Complainant. In relation to the procedures adopted, I note that the disciplinary process is agreed between the Respondent and the trade unions representing its employees and further take the view that any possible shortcoming with the initial disciplinary hearing was remedied by the appeal chaired by an independent Chairperson. In the circumstances, I do not propose disturbing the findings of the Appeal Board and note that the written warning in question will shortly be removed from the Complainant’s file hopefully without further ramification.

However it does appear that a lack of clarity between the Parties regarding accommodating the Complainant with vehicles which have a suspended driver’s seat may have led to these difficulties and consequent disciplinary action. Noting that both Parties are anxious to avoid any further similar disputes, I recommend that the Respondent invites the Complainant to be assessed by its CMO within 42 days of the date hereof and depending upon the assessment (including that arising from any referrals to other medical experts deemed necessary), that the Complainant’s position as a driver be examined in light of same and that he is accommodated accordingly in accordance with the Employment Equality Acts, including if necessary facilitation with a suspended driver’s seat.

Dated:  15^th August 2016