FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : STOBART (IRELAND) DRIVER SERVICES LTD (REPRESENTED BY PURDY FITZGERALD) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision No(s) r-156461-ir-15/DI.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and decision. On the 10th November 2016 the Adjudication Officer issued the following Recommendation:-
- In the circumstances I recommend that the sanction be reduced to a Written Warning.
The Employee appealed the Adjudication Officer’s decision to the Labour Court on the 21st December 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 6 March 2017.
DECISION:
This is an appeal by Mr Scott Hazel against the Recommendation of an Adjudication Officer r-156461-ir-15/DI under the Industrial Relations Acts, 1969 to 1990. The Claimant, Mr. Hazel, disputes a final written warning issued to him for refusing to undertake his delivery run on 19thOctober 2014. The Adjudication Officer recommended that, in the circumstances, the sanction be reduced to a written warning.
Background
The Claimant is employed as driver. Pursuant to the European Community (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131), he transferred to the Company’s employment in 2010. Following the transfer, the Claimant disputed the Company’s adherence to both his contractual terms and conditions of employment and his legal entitlements, in particular the Company’s failure to provide him with information on his normal or regular starting times and finishing times and duration of his working day.
Summary of the Claimant’s Case
Ms. Karan O’Loughlin, SIPTU, on behalf of the Claimant put forward the following points:
- i.The Company has not adhered to the terms of the Claimant’s contractual conditions which transferred as part of the transfer of undertakings. Neither has the Claimant been afforded his legal entitlement to 24 hours’ notice of his starting times.
ii.It was reasonable for the Claimant to dispute the run allocated to him on the day as it was in breach of his terms and conditions.
iii.The Claimant was not afforded representation at the outset of the process which led to the warning being imposed on him.
iv.The disciplinary sanction was unwarranted and unreasonable and should be overturned.
On behalf of the Company, Mr. Einde O’Donnell of Purdy Fitzgerald Solicitors outlined the employer’s case as follows:-
- i.The Claimant unreasonably refused to do his run on 19thOctober 2014 and was appropriately disciplined accordingly.
ii.The Complainant refused to take the run allocated to him based on a belief that he was a“9 hour driver”as per his contract. The Claimant has a liability to work up to 48 hours per week, therefore flexibility is required regarding the duration of the working day.
iii.The run allocated would not have breached any statutory working time limits.
iv.The Company adhered to its disciplinary procedures and the Claimant was not disadvantaged in the process.
v.Refusing to undertake a run is a very serious matter and the sanction was warranted and appropriate in the circumstances.
Recommendation
The Court notes that many of the matters associated with this dispute are also the subject of related complaints under other pieces of employment rights statutes. The Court does not propose to deal with those matters in this Recommendation.
The Court notes that the warning at issue expired at the end of November 2015. At the Labour Court hearing the Company confirmed that it would, in the circumstances, undertake to expunge the final written warning from the Claimant’s file.
The Court, in the circumstances of this case, is satisfied that that undertaking from the Company is sufficient to resolve this matter. The Court accordingly endorses that undertaking and recommends that the Company confirm in writing to the Claimant, within two weeks of the date of this Recommendation, that it has expunged the warning. This should be accepted by the Claimant in full and final settlement of this dispute.
The Recommendation of the Adjudication Officer is varied accordingly.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
CC______________________
30 March 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.