ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001039

Dispute for Resolution:

Date of Adjudication Hearing: 01/03/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 , 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).

Complainant’s Submission and Presentation:

The complainant worked as General Operative at a Drinks Factory from 2006. In September, 2015, he was promoted to a Level Three Operative and worked a 39 hour week.

His claim before the WRC is that he received a verbal warning from the respondent on 13 October, 2015, which was upheld on appeal on 18 November, 2015. He sought the removal of the warning from his file.

The complainant submitted that the respondent had not raised any issues regarding work performance with him prior to this episode.

The complainant worked in a “Salt Filling Room” which produced labels for the product via an “InTouch screen”. Over a three day period, 5-7 October, 2015, the labelling system encountered some difficulties. On, Monday, 5^th October, the system malfunctioned on 200 occasions during the complainants shift. On Tuesday, 7^th Oct, the system operated without incident.

On Wednesday, October 7^th, the system began to malfunction again, causing the complainant to alert his technical co-ordinator; JO'S that it was frustrating in the works area. JOS reviewed the malfunction and left. The complainant then tried to activate the labelling system again himself by double tapping the screen, which prompted the screen to crack. The complainant reported this development to JOS who told him to go home at approx. 16.30 hrs just before his shift was due to conclude.

This prompted an investigation of the event by an Assistant Supervisor, JR. which was followed by a disciplinary hearing on October, 12^th, 2015. The complainant contended that fair procedures were not followed in this matter as:

1 Neither JR nor JOS was asked by the respondent to furnish a statement of their version of events.

2 JR, as the complainant’s supervisor was overly close to the incident of Oct 7^th and ought not to have been a member of the initial Disciplinary Hearing.

3 The labelling machine was always breaking down and the Complainant did not punch the screen in frustration.

4 The respondent had not disciplined other workers when two screen breaks had occurred previously.

5 There was a spare screen available.

The complainant believed that a verbal warning sanction was unwarranted and appealed on October 20^th, 2015. On November 18^th, the decision on the verbal warning was upheld by the respondent and accompanied by an “unwarranted reference to the complainants behaviours and the company having a duty of care to your co workers”

The Complainant sought the removal of the verbal warning at the hearing.

Respondent’s Submission and Presentation :

The company is a large multinational which employs over 650 employees in the South of Ireland. The respondent refutes the claim made by the complainant on the grounds that the company has treated the incident very seriously. They do not accept that the complainant’s actions were accidental.

On 30 September, 2015, there were some issues with the label detection process that the complainant was working on. JO’S, in his capacity of manufacturing senior co coordinator assisted the complainant. JO’S was recalled to the room by the complainant to be told that the screen cracked when the complainant “had punched the screen”. Following further probing, JO’S was informed by the complainant that he had put his two fingers through the screen in frustration as the label detection had been causing issues during the run off. He sent the complainant home and finished the process.

On 1 October, 2015, JR, Manufacturing Assistant Supervisor approached the complainant to seek an explanation for the events which led to the machine being damaged. He was informed that the complainant had hit the screen following his frustration with a series of machine malfunctions. JR was not pleased with the account of the antecedence of events which prefaced the “crack “on the machine and he registered this displeasure with the complainant. He also enquired whether any mitigating factors were evident and. The complainant denied same.

JR told the complainant that the matter would now move to a disciplinary investigation.

On October 9^th, The HR Co coordinator invited the complainant to a disciplinary meeting on October 12^th hosted by VL and JR. He was permitted representation and advised that “the hearing would consider disciplinary action with regard to the damage sustained to the in touch Screen, following an investigation into same.” A copy of the Investigation report and disciplinary policy were attached.

The meeting occurred on October 12^th and the complainant was represented by PC, Shop Steward. The complainant stated that he had not applied excessive force to the screen and the action was not done on purpose in response to the furnishing of the allegations from the respondent.

The next day, the respondent issued a verbal warning to the complainant and a direction for him to attend refresher training in the company code of conduct.

This was appealed by SIPTU on October 20^th, 2015 on the grounds of

1 Circumstances relation to matter in hand

2 Procedures

3 Proportionality

4 Severity of Sanction

The appeal meeting was held on November 9^th, 2015 by CA, Manufacturing Manger and DP, Hr Manager.

On November 15^th, HR interviewed JO’S regarding his recollection of events of September 30^th.

“Met with JOS and asked him to go through his recollection of events. J was clear in his account , he went to the room to help the complainant as he was having problems generating labels, he left room briefly, he was called back by complainant who said to him, look at this, Complainant showed him the broken screen and complainant said to him that he had punched the screen “

On November 23^rd, the outcome of the appeal upheld the first Disciplinary Hearing Committee sanction.

The Company submitted that the complainant had sought the Adjudicator to assess the claim on the sole grounds of severity and therefore the arguments on fair procedures had no standing in that regard.

The company was clear, however, that fair procedures had been consistently applied to the complainant in the case through:

1 Right to representation

2 Informed of allegations

3 opportunities to state his case

4 Informed of the possible outcomes of the disciplinary hearing

5 Right of appeal

They argued that the respondent was obliged to take the action they did in light of the harm done to the property of the firm and the permitted parameters for such approach throughout the company procedures agreed with the Union. The damage caused cost €3,702 to replace the screen and the complainant was not expected to cover that cost; neither would his bonus payment scheme be affected...

The respondent wanted to impress on the adjudicator that any review of the sanction in this case should take account of an upward alignment to one of the higher sanctions permitted . They contended that they were acting under the umbrella of a reasonable employer and viewed the sanction as “extremely lenient “when all circumstances were taken into account.

In conclusion, the company was clear that that the sanction would expire through natural attrition on the 13^th April, 2016, 6 weeks post the hearing date.

Case Law relied on:

Looney v Looney, UD 843/1984

Findings of Adjudication Officer .

I have given careful consideration to both submissions, oral and written in this case. What I am struck by first and foremost is the conjoint loyalty of both parties to the success of the company. The complainant was very proud to have been promoted in September 2015 and the company were very respectful of his position.

I am aware that both parties will continue to work together for a considerable period of time and this issue has caused a mutual disappointment. The complainant contended that his honesty and open disclosure should have weighed heavier in the company considerations, while the company was clearly concerned at the repetitive nature of screen breakages. They acknowledged at the hearing that they were unable to pursue any previous employees in this regard as all investigations had previously “come to a dead end. Therefore, it is reasonable to adduce from the respondent submissions that this was a cause of a certain amount of irritation for the respondent.

I am being asked to rescind a verbal warning. This is a serious question.

1 There is a visible discrepancy in timelines referred to by both parties. The complainant submitted that the incident which resulted in the verbal warning occurred on October 8, 2015. The respondent relied on September 30^th as the date in question. I find that the Investigation notes refer to Wednesday 30^th September. These were not contested at any point. Therefore, I find that the incident referred to must have occurred on September 30^th 2015 allowing for the timelines referred to in preparation for the Disciplinary Hearing on October 12^th.

2 I inquired whether an Incident Report Form or near miss form had been logged in this case. It had not, given the serious weighting placed on the incident by the respondent. I find this omission surprising. I believe that this may have afforded a more accurate record of exactly what happened in real time without the need to adopt a “look back “approach. I also inquired whether there was a maintenance log available for the machine at the heart of the story. There was not.

3)) I have reviewed the provisions of S.I 146/2000.IR Act 1990(Code of Practice on Grievance and Disciplinary Procedures) on the general principles of natural justice and fair procedures to include;

1 Details of Allegations are put to the employee

2 Opportunity to respond in full

3 Right to representation

4 Right to fair and impartial determination of the issues concerned

5 As a general rule, an attempt should be made to resolve disciplinary issues between the employee concerned and his immediate manager or supervisor. This could be done on an informal or private basis.

I have also reviewed the respondent’s disciplinary procedure and noted the procedural steps in the disciplinary procedure. I find that there was a serious shortfall in fair procedures in this case .

4. ^th hearing , The representative was viewed as a support for the complainant and “ could not participate in the investigation discussion” There was no visible weighting applied to any of the representatives three statements at the hearing.

Furthermore, there was no clear delineation applied to the Investigation and the disciplinary hearing in this case. It seems that the investigation was concluded one day after the event and was undertaken by JR, who made it known that he disapproved of the actions of the complainant. I find this constituted a certain amount of pre judgement on behalf of the Investigator, who in turn took on the role of decision maker in the Verbal warning action.

The complainant understood that an investigation was to take place post the incident of the screen. I find that the investigation should have been more expansive and should have incorporated the statement of JOS well in advance of November 15^th, where the complainant did not get the opportunity to respond to his statement. The respondent commenced the disciplinary process against the complainant without the statement of JOS, this undermines the investigation. In a company of 650 employees, it should have been possible to appoint an alternative investigator and decision maker .Matthews v Mullingar Recycling Resource Centre ltd UD971/2014

5) I accept that the respondent issued the verbal warning in the honest belief that it was a proportionate action. However, during the hearing, the respondent made reference to other situations which had occurred involving the complainant where he reportedly displayed some episodes of impatience and his behaviour was a cause of concern to the company. It was clear that these incidents were active in the minds of the decision makers at the time of the Appeals Hearing and were not put to the complainant.

Conclusions :

There is provision in the respondent’s disciplinary process for engagement in an informal process where it is appropriate. This is to take place through the immediate Team Leader. I accept the Respondents submission that  I must look at the reasonableness of what occurred. I accept that the respondent was aggrieved at having to preside over and manage a valuable and damaged piece of equipment.

However, I am not satisfied that sufficient time was permitted to fix the problem and to give the complainant time to improve prior to recourse to the formal procedures of the disciplinary procedure. The complainant had worked there for 9 years on a clean record and I find that this should have been afforded more weighting.

I accept also , on balance, that the complainant, while aware of the deficiencies in the labelling equipment had not activated a corrective action plan or initiated the grievance procedure in relation to the repeated malfunction of the equipment and his visible frustration which flowed from that .

Taken in tandem with the shortfall in fair procedures, I find the complainants claim is, however, well founded. I find that it would have been fairer and more reasonable to target corrective action in this case under the informal stage of the Disciplinary Procedure.

Recommendation

I recommend that the respondent and the complainant engage in the informal stage of the Disciplinary Procedure to address mutually identified coaching and mentorship needs over a three month period. I recommend that the verbal warning be removed from the Complainants file.

Dated:   7^th June 2016