ADJUDICATION OFFICER DECISION

 Adjudication Decision Reference: ADJ-00001956

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 25/10/2016

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

 Complainant’s Submission and Presentation:

At the hearing the Complainant gave the following evidence:

1. I work as a delivery driver for the Respondent

2. I was working in the store on 19 December 2015 when an incident occurred

3. I was attempting to move a combi, which is a trolley made up on a tall metal cage on four wheels. The wheels rotate on one side of the combi and are fixed on the other side. The practice was to leave the combis with the fixed wheels facing the wall so that the delivery personnel could pull the combi out from the wall, holding the side with the rotating wheels.

4. On this occasion, the combis were left wrongly turned. This is a problem because they can get tangled up with a rachette belt unless they are stored correctly

5. I assumed that the other member of staff who was standing beside the combis, as I arrived, was responsible for this wrong storage and I was annoyed by this. I asked her why were they turned the way that they were.

6. I was also in a bad mood because minutes earlier I had had an argument with a difficult customer in the car park who wrongly accused me of something.

7. When I approached the combis, I asked my colleague why the combis were stored like they were. She moved quickly and as she did so, the combis moved from their position, and swung towards my colleague, as the floor is sloped downwards. I held onto the combis, which were interlocked by a rachette belt. I did not know that they were interlocked with the belt prior to the combis starting to move.

8. Despite my best attempt to stop the combis from moving, they swung into my colleague and injured her. I did not mean to cause my colleague any harm and the reason that she was injured was not my fault. It was because she moved, the floor is sloped and the combis were linked together at their base with a rachette belt. None of this was my doing. I was attempting to stop them running into her, I didn’t cause them to run into her.

9. I accept that I used bad language but this was because I hurt my hand when I tried to move the combi and it was attached to another combi by a rachette belt, in swinging the combi may have hurt my colleague but it also hurt my hand.

10. I had a meeting on 21 December 2015 with the Store manager. He would not listen to my explanation and he gave me a letter of suspension in order that an investigation into the incident could take place.

11. Prior to this meeting I was given no explanation as to what the meeting was about. I was not given any witness statements or advised as to my right to representation.

12. At a disciplinary meeting on 29 December 2015 I was not given a chance to view the CCTV footage upon which I was found responsible for what occurred and when I asked for it , I was refused.

13. In the investigation by the H.R. manager, I was not allowed a chance to explain my side of the story.

14. The appeal which was heard at the end of January was unfair in that I still wasn’t shown the CCTV and the appeal was simply a rubber stamp of what had been decided before. I wasn’t properly listened to.

15. I was issued with a final written warning and since then my work life has been very stressful and difficult. I find that the attitude of my colleagues has changed and I cannot enter the workplace without feeling anxious.

16. I feel that I have been unfairly treated and that the procedures of investigation into this incident were unfair in that I was not allowed explain properly my side of things.

Respondent’s Submission and Presentation:

At the hearing the Respondent gave the following evidence:

1. Following a serious incident on 19 December 2015 the Complainant was investigated and found to be liable for an injury sustained by a fellow colleague.

2. The investigation was fair and in compliance with company procedures.

3. The sanction of a final written warning on the basis of gross misconduct was proportionate and fair in the circumstances.

4. The Complainant acted in breach of customer care policy, used abusive behaviour, assaulted a fellow employee and failed to apply store safety requirements.

5. The purpose of the meeting with the Store manager on 21 December 2015 was to hear the Complainant’s version of the incident.

6. The Store manager gave the following evidence

1. I asked him to come into my office on 21 December. I filled in the investigation report on the basis of what he told me. It is untrue to say that I did not listen to his explanation, it’s just that his explanation was enough for me to suspend him, pending an investigation into the incident

2. He did not mention the belts being low down at this meeting. His explanation was just that the incident had occurred, that it was not that serious but he was sorry and that he was in a bad mood at the time.

3. I viewed the CCTV and in my opinion the footage showed that the Complainant was annoyed about something. He was due to finish work and was in a hurry, he then moved the combis in a rough manner which caused them to slide into the other employee. He did not intentionally hurt his colleague but it was his temper and the fact that he moved them roughly that caused the combis to run into his colleague. He was reckless.

4. We didn’t show him the CCTV of the incident because he did not ask for it.

5. The statement of the injured employee was that the Complainant ran the combis into her. The statement of the witness (another employee) was that the Complainant audibly used bad language within ear shot of a customer, which he doesn’t deny.

The H.R. manager gave evidence as to the Disciplinary meeting on 29 December 2015 at which the then shop steward was present as a witness.

1. I read through the incident report form and the two witness statements

2. I stated that the colleague of the Complainant had suffered a soft tissue injury to her rib, which required hospitalisation

3. I asked the Complainant what did he think the Respondent should do about the situation and he said that it was his fault (he denied saying this, at the Adjudicator hearing)

4. He was asked what he had learned from the incident and he replied that he should “keep him cool the next time.” (he accepted at the Adjudicator hearing that he said this)

5. After considering the sanctions contained in the Employee handbook, we found that the action of the Complainant were reckless rather than intentional but it still amounted to gross misconduct.

6. The first time that we heard of a hand injury which caused him to use bad language was today

7. He had a clean record before this and was always a good and reliable worker. He never acted in an aggressive way before this incident and this was recklessness arising from annoyance or temper rather than intentional wrong doing

8. The reason that the investigation and disciplinary meetings were held quickly was in the Complainant’s interests so that he wouldn’t have it hanging over his, over Christmas.

9. The Complainant appealed the sanction on the grounds that the incident was purely accidental and that the sanction was too severe.

10. The appeal upheld the findings of the investigation and upheld the sanction.

The shop steward at the hearing gave evidence that the Complainant accepted at the investigation meeting that the Complainant said that “he would keep his cool the next time”

Recommendation:

This is not a matter in which there was any intentional wrong doing by the Complainant. The Complainant had a long and successful employment history with the Respondent. He had a blemish free record and he was and is a reliable worker. One that any employer, would be very happy to engage.

This incident was significant in that an employee was injured. Injuries sustained by employees while at work must be taken seriously not least because employers have an obligation to ensure that the system of work that they have in place does not expose workers to any foreseeable risk.

The Complainant accepts that going into this situation, he was annoyed. This was due to a difficult customer in the car park, immediately preceding the incident. I accept this evidence and I accept that given the time of year, a few days before Christmas that there was pressure on the Complainant, as it would have been on all staff.

There is no doubt that the other employee suffered an injury, for which she had to be hospitalised. This cannot be watered down in any way. It was a bad injury and she must have been shocked and scared by the incident.

I accept the evidence of the Complainant himself that he was in a bad mood at the time of the incident. I also accept the evidence of the shop steward, now retired, who has no vested interest in this matter, that during the investigation meeting that the Complainant admitted that the next time “he would keep his head cool.”

For this reason I find on the balance of probabilities that the combis were swung in a more energetic way than usual, due to the fact that the Complainant was irritable and the combis were the wrong way around. Even if only a portion of one’s actions are taken in anger, this is still not acceptable. To act in anger can have adverse consequences, as it did here, and this necessitates some form of sanction.

I find however that the procedures in dealing with this investigation were inadequate.

The Complainant should have been asked to write a statement on the incident, just as the other witnesses were asked. To fail to do so leaves the Respondent open to the accusation that the employees involved were treated unequally. The Complainant should have been shown the CCTV footage during the investigation, especially as it formed such a crucial part in convincing the Respondent of the Complainant’s liability. It is up to the Respondent to conduct the investigation fairly, it is not up to an employee to have to request that fairness be applied and request that all the evidence be given to him, in advance of the investigation (which it was not.)

The guiding rule is that a Complainant should know in advance of the investigation the complaint made against him and the evidence that supports the complaint. This is so he can raise a defence to the allegations if he wishes.

I find that on a procedural basis that the investigation was inadequate however I find that, given the evidence at the hearing, the finding of culpability of the Complainant, was not unwarranted.

I find that the complaint is well founded only on the basis that the offence found and the sanction imposed are too severe. I recommend that the offence be reduced to misconduct as opposed to gross misconduct and I recommend that the sanction be reduced to a written warning, as opposed to a final written warning. I am not interfering with the finding that the Complainant was at fault in relation to the incident.

I am confident that the parties have learned from this process and that the Complainant will keep his cool in the future and that the Respondent will adopt fair disciplinary processes when investigating complaints in the future.

Given the evidence of the Complainant, I make no award of compensation

Dated:   11^th November 2016