ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00002832

Dispute for Resolution:

Date of Adjudication Hearing: 22nd September 2016.

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the Industrial Relations Act 1969 and following 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.

Summary of Trade Union Case:

On the Complainant form the following was stated by the Complainant.

I object to the sanction imposed on me as a result of my Disciplinary Appeal.

It is my belief that the issue that led to my discipline was contrived and that the procedure used was flawed and contrary to S.I. 146, the Code of Practice on Grievance and Disciplinary Procedure.  I was falsely accused of theft, which was never acted upon, and this coloured the whole process and my reaction to gaining access to my personal locker.   I believe that the Respondent were put under pressure by the Client Company Management as a result of my participation in Industrial action in relation to an earlier dispute in the Client Company, before the transfer of undertakings to the Respondent, which made me an employee of the Respondent.   I believe there is no basis to remove me from the Client Site and that that Site should remain my place of work.   The alternative job offered is unsuitable as I cannot drive long distances for medical reasons.

The Complainant said that at the time of the transfer of undertakings he was asked by his Line Manager to change his shift from the one he worked, but his shift partner was not asked to change.   He said the Manager was extremely aggressive to him about his refusal to change shifts and threatened him stating, if you are not prepared to change shifts you will be moved to days with the loss of shift premium payments.

The Complainant said he did make a verbal complaint of bullying and harassment and it was not investigated by the Respondent.   He confirmed that he did not invoke the formal procedures in that respect.   He said that subsequently he was told that there had been an allegation made against him and when he asked by whom he was not told, also when he asked was it in writing he was told no it was not.

In relation to the question of drill bits the Complainant said that he did keep drill bits in his locker for use in/on the job.   He said that when he was informed that there were queries about the amount of drill bits he had obtained from the Stores, he returned to the Stores the ones that were not yet used.   He said he asked in the Stores was the amount of drill bits obtained by him greater than the other technicians and he was told that was not the case.   The Complainant said that as far as he was concerned he was, in relation to drill bits, being accused of theft and he said there would be no other reason for conducting an investigation other than that he was stealing the drill bits.   The Complainant said that this bothered and concerned him very greatly and he concluded that had to protect himself against any possible allegation or accusation of theft against him

In relation to the locks for lockers the Complainant said that prior to the 2014 strike in the Client Company the technicians had their own lockers and their own keys only.   On return to work from that strike the locks on the lockers had been cut off and replaced by the then employer’s own ones.   The Complainant said that this policy did not apply across the Plant.

The Complainant said that in order to protect himself from any accusations or allegations and to protect against anyone either placing or removing items from his locker he removed the Respondent issued padlock from his locker and replaced it with one of his own.

The Complainant said that all he was seeking was to have either himself or a work colleague present when/if his locker was opened and he said that he made this clear to the Respondent and he submitted that this was a reasonable position to adopt in all the circumstances.

The Complainant said that his Line Manager was very aggressive and hardline with him on the issue of the locks for the Lockers and would not take into account his views and genuine concerns.

The Complainant said he was handed a Company padlock and was told to accept it and put it on his locker or he would be suspended.   The Complainant said that he informed the Line Manager that a Company padlock or a Client padlock was acceptable to him provided that he or a colleague was present if/when his Locker was opened.

The Complainant said there was never a spot audit by the Client.  

The Complainant said that no account was taken by the Respondent of his position or legitimate concerns.

For all the foregoing reasons TEEU and the Complainant sought that the claim be upheld

Summary of Respondent’s Position:

The Respondent said that in this particular case they secured a contract with a named large Company in the Food Sector (hereinafter the Client).   As part of this the Complainant transferred to the employment of the Respondent.   The Respondent said the Complainant was employed as a Maintenance Technician and has worked in this particular plant since March 2006.

The Respondent said that in 2015 a number of issues arose in relation to the Complainant’s performance, which resulted in them initiating a performance process.   In October 2015, an issue arose concerning the amount of drill bits collected from the Stores by the Complainant which resulted in the Respondent initiating an investigation.

Shortly after the Complainant was requested to attend an Investigatory Meeting a further issue arose regarding the Client’s tools lockers that were allocated to the technicians.   The Client allocated a tool locker to each technician along with a padlock to use on the locker.   The Client reserved the right to access these lockers at any time, whether the technician was present or not and the reason for this was that the Client could be subjected to an audit from their customers at any time and it was essential that the audit could include checking the tools used, all of which are supplied by the Client or the Respondent.   The Technician was allowed to keep their own tools in the locker, but they were allowed to take them off site at ay time, unlike the Respondent or Client issued tools.

The Respondent said that for some reason the Complainant formed the view that he was accused of stealing when he was invited to the Investigation Meeting to explain the excessive number of drill bits he had taken and he also decided that certain employees who were senior to him may decide to either remove items from his locker or put something into his locker and as a result he removed the Company issued padlock and put his own padlock on without permission from anyone.   This came to the Respondent’s attention and he was requested on a number of occasions to remove his padlock by the named Site Manager, but the Complainant refused to comply with this request.   Having been afforded the opportunity and warned of the consequences if he failed to comply with this reasonable request from his Manager, he was suspended on pay pending investigation on 27^th October 2015.

The Complainant was requested to attend an Investigatory Hearing on 9^th September 2015.   The Complainant attended along with his TEEU Shop Steward.   When he was asked why he had changed the padlock, he said that he had been accused of stealing drill bits and thus he decided he was not going to allow anyone have access to his locker as they might either take out or put in something that would incriminate him and he also stated that he now had an issue with his right of access, even though he had never raised that issue previously.   He further claimed that the Site Manager did not like him and he was been encouraged by a named Supervisor with the Client and that he did not know who he could or could not trust.

Following the Investigation the matter was referred to a Disciplinary Hearing, the letter informing of this stated:

• He had not raised any of the issues he had referred to in his defence previously despite there being procedures to facilitate this.

• His actions were regarded as inappropriate and unprofessional.

• He refused to carry out a reasonable instruction

• His attitude towards management

The Disciplinary Hearing was held on 26^th November and was presided over by the named Strategic Account Manager.   The Complainant was again asked to give his explanation for his conduct.   His position was the same but had become even more belligerent and he was claiming that it was all his tools and that no one had a right access to his locker, despite the fact that the same rules applied to all technicians and that he had no basis to believe he was being accused of stealing.

The outcome of the procedure was that the Complainant’s action were viewed by the Respondent as being gross misconduct in a serious breach of procedures and a loss of trust and confidence that resulted in a loss of confidence in the Complainant and he was informed of this by letter of 16^th December 2015.   At the time the Complainant was still suspended on pay and he was then requested to meeting with the Strategic Account Manager to discuss the outcome.   Arising from that Meeting the Complainant informed that he was not returning to the Site and he was offered an alternative job as Mobile Maintenance Technician.

The Complainant appealed the decision.   The Appeal was heard by a named Account Director on 9^th February 2016 and the Appeal was rejected, confirmed by letter of 18^th February 2016.   This letter also stated that as the internal appeal process had been concluded the Complainant should now return to work and if he did not he may be taken off pay.

Subsequent to this the Complainant presented a medical certificate stating that he had a medical condition which meant that he should not be involved in a lot of driving.   On foot of this the Respondent requested the Complainant to attend an Occupational Health Assessment, which confirmed his condition.

The Respondent said that since that date they have not been able to assign the Complainant to an alternative job.

The Respondent said that the issue is whether the Complainant’s conduct was so serious that it merited the sanction taken by them.

The Respondent said that in this respect, the Complainant, has in the first instance disregarded important internal procedures that are in place as part of a process to protect the integrity of the product.   A breach of this integrity could do serious damage to the reputation of both the Respondent and more importantly the Client.  In addition to this the Complainant made an unsubstantiated allegation of bullying against the Site Manager and the Client’s Supervisor, despite the fact that the Respondent has procedures to deal with such allegations.   The Complainant also maintained he had been accused of stealing by the Respondent, without ay good reason.

The Respondent said that refusal to obey a reasonable instruction from a manager is a very serious matter.   Not only did he refuse an instruction, he then made accusations against the Manager issuing the instruction and implied that the Manager was instructing him because the Manager wanted to plant something in his locker.

The Respondent said it is very clear that the Complainant by his behaviour and accusations had not only destroyed his working his working relationship with his Line Manager and had also undermined his relationship with the Client.   The Respondent said that as a consequence they had no alternative but to remove him from the Site, regardless of what level of disciplinary action was to be taken.

The Respondent said that they made a reasonable effort to assign the Complainant alternative work, from as far back as 6^th January 2016, yet he chose not to inform them about his medical condition until the end of February and they said this of itself is unacceptable conduct as if he could not do a lot of driving clearly he should have notified them that the job they offered him was not suitable, but instead he chose to divulge this information only later when it suited him.

The Respondent contended that they have acted totally reasonably at all times throughout this process and on that basis they submit that the Final Written Warning should stand and stated that this Warning should come into effect from the date of this recommendation.

The Respondent said that they inherited the practice in relation to spot check audits and padlocks for lockers and they further said it was open to the Complainant to seek change through negotiation between his Trade Union and the Respondent, rather than just refuse to carry out a legitimate instruction from his Line Manager.

The Respondent sought that their position be upheld and that the claim be rejected.

Findings and Recommendation:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that the original claim and dispute referred by TEEU on behalf of the Complainant was seeking to have the disciplinary sanction imposed on the Complainant removed and that he be facilitated in a return to work at the Site he worked at before his suspension by the Respondent on 27^th October 2015, in connection with an Investigation of the allegations against him at that time.   However matters have moved on considerably since then and both parties now accept that returning to work at that Site is not a realistic option and this a view that I share.

I recommend that the parties intensify discussions on an alternative place of work for the Complainant and that both parties approach those discussions in an open, genuine and realistic way and with the shared desire to find a suitable alternative workplace for the Complainant at an early date in the interests of both parties.   In the event that it is not possible to find a suitable alternative place of work for the Complainant then the parties should explore and consider a severance agreement/arrangement.   I believe that if an alternative workplace is found for the Complainant then the issues that led to the disciplinary action will cease; however I do accept that the Respondent cannot allow a refusal to follow a legitimate instruction to go unmarked and accordingly I recommend that the Warning should only remain on the Complainant’s file or record for a period of 6 months after his return to work.   In the event that it becomes necessary to have a severance arrangement/agreement the question of the Disciplinary Warning will be irrelevant.

Seán Reilly, Adjudication Officer.  

Dated:   12^th December 2016