ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00002100

Complaint for Resolution:

Date of Adjudication Hearing: 13/07/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Venue: Ardboyne Hotel, Navan, Co. Meath.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 13 of the Industrial Relations Act, 1946 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant was employed as a factory operative from the 16^th of May 2013 to the 26^th of February 2016. She filed a complaint with the Workplace Relations Commission stating that “It is a complaint relating to disciplinary sanctions up to and including dismissal.” She filed her complaint with the Workplace Relations Commission on the 26^th of February 2016, under Section 13 of the Industrial Relations Act, 1946.

Complainant’s Submission:

The following is a summary of the Complainant’s submission;

The complainant received a final written warning from the employer on the 16^th of October 2015. She is appealing this sanction on the grounds that her union had referred changes in work practises to the Workplace Relations Commission for a conciliation conference. The Respondent failed to participate in a Conciliation conference.

The Complainant is one of three employees who were brought through the disciplinary process for alleged failure to comply with an instruction. The Respondent claimed that this action was in breach of her contract. The Complainant had serious concerns about being asked to load onto the back of a container unit with pelleted product transported on an electric pallet truck. This action involved walking onto the loading bay area into the back of a lorry and stacking the lorry for departure. The complainant believed that no risk assessment was produced to cover this work. She was also afraid that she would slip on the wet loading bay on the back of the lorry which at times, got wet.

The Respondent responded to Union letters of the 17^th of September 2015, stating that the onsite steward had not raised the issues locally. This did not make sense as the shop steward was one of the three operatives objecting to the changes. The Respondent forced the issue by requesting the Complainant and her colleagues to load the trailer. They refused to do so and were invited to a disciplinary investigation. The Union were not in a position to attend a meeting at such short notice and requested the Respondent to rearrange at a mutually acceptable date. The Respondent refused to do this. The meeting went ahead with the Respondent without proper representation. The Complainant raised her concerns in relation to the new work practises. These were rejected by the Respondent as she had completed an hour and a half training in a warehouse on the pallet truck on April the 14^th. The Complainant was of the view that the training involved different work and the warehouse floor was dry and flat. The Complainant also pointed out that she very rarely worked with the pallet truck. She was issued with a final written warning and worked under protest on the advice of her Trade Union. This dispute could have been resolved in an amicable manner at the time if the Respondent was willing to rearrange a meeting with the Trade Union and the Complainant. However, they failed to do this and issued a final written warning against the Complainant which was disproportionate. The complainant’s right to be represented during the investigation stage of a dispute and also at the disciplinary meeting was denied to her. The Complainant wasn’t the sanction of a final written warning removed from her record.

NOTE ON COMPLAINANT’S SUBMISSION;

I note that the Complainant’s representative did not deal with the Complainant’s dismissal which was clearly part of her complaint on the complaint form. I note that she only dealt with a final written warning which was issued to the Complainant on the 16^th of October 2015.

Respondent’s Submission:

I note that the Respondent’s submission clearly dealt with the Complainant’s dismissal based on the information provided by the Complainant on her complaint form. I note that the complaint lodged by the Complainant was the same date as her dismissal namely, the 26^th of February 2016.

Findings:

I find that the Complainant did not address the complaint that she filed with the Workplace Relations Commission on the 26^th of February 2016. It is clear from the information on the complaint form that she filed her “complaint in relation to disciplinary sanctions up to and including dismissal”. The Complainant lodged her complaint on the same date as her dismissal so it is clear that she did intend to pursue a complaint in relation to that dismissal. However, she only pursued a complaint relating to a final written warning which she received on the 16^th of October 2015.

Recommendation:

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

Based on the evidence presented by both parties at the hearing, I find I am unable to adjudicate on the complaint on a final written warning as this was not the Complaint filed by the Complainant on her complaint form.

Dated:   3^rd November 2016