Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00010235-001

15/03/2017

The Parties presented their positions initially by way of pre-prepared submissions which were opened to me. The parties were additionally given every opportunity to present their witness evidence and to fully explain what had happened and where they stood.

In essence the Claimant comes before the Adjudication process looking to commute, as it were, a sanction he says is too onerous and far outweighs the incident complained of.

The Respondent says that the disciplinary sanction imposed (a twelve month letter of warning ) is appropriate to the conduct complained of and that the previous good conduct and longevity of service has been taken into account such that the Claimant avoided a Dismissal which the Respondent says might in other circumstances have been appropriate.

The Complainant has worked as a driver since 2004. The Claimant’s record is good. He is punctual and hard working. On the 11^th of November 2016 the Complainant turned in for a shift at about 1pm. His shift was due to end at 10pm that evening. On that day the Claimant was a “spare” driver which means he is not specifically assigned to particular runs and must instead be working in the yards and be available at short notice to take over runs in the event that assigned drivers get into difficulty and are unable to complete their runs. Earlier in the day the Claimant had completed a run.

Towards the back end of his shift, the Claimant who was situate in the Red Cow Depot was asked to take the scheduled 20.31 train into the city centre terminus and turn it around and bring it back to the Red Cow Station for it’s assigned time of 21.59 (one minute before he was due to clock off).

The Complainant was concerned that the least little delay would mean that he would have to overrun on his shift and this was something he was anxious to avoid (though no particular reason was given for this – other than general inconvenience). The Claimant made known his reluctance and was told that his Team Leader would contact him. The Team Leader did indeed contact him and the Claimant again said he was not happy to do this run as it would leave him running overtime and late.

The Claimant cited two things in particular which he felt would imperil his finishing time. 1. The Claimant believed that once he had taken charge of the train he would be expected to run the train right through to it’s terminus in Tallaght and would not be allowed disembark at the Red Cow stop . 2. That if the Train was to stop altogether in the Red Cow stop he would be expected to bed down or de-prep the train for the night which might take up to twenty minutes.

The Team Leader advised and offered that the Claimant could leave the Dublin city Centre terminus 5 minutes earlier than the time scheduled on the timetable in order to ensure that he got back to the Red Cow station with up to five minutes to spare. The Claimant was still not persuaded that he would be anything other than late and would run beyond his finish time.

It was urged on me to consider that manner of the communication made to the Claimant. Things were not said in the heat of the moment that were subsequently made clear in the investigation ie the availability of a relief driver.

I was also asked to consider the poor atmosphere in the workplace in the aftermath of a fairly contentious strike action taken by the workforce.

In consequence of the Claimant’s refusal to do the run as asked of him, the 20.31 train did not leave the Red Cow Station and do the round trip into the city that it was meant to do. Another driver was in a position to take the train at 21.59 at the Red Cow stop and continue it’s journey to the end of business that day.

The Respondent pointed out that the “Refusal to undertake duties as specified in job description/contract of employment ” was behaviour perceived to be conduct which constitutes Gross Misconduct and therefore may result in Summary Dismissal.

The Respondent made the point that the Claimant was quite simply asked to perform one of his many duties and functions during a period of time when he was being remunerated to so perform his duties and at a time when the Respondent might reasonably have expected that he should so perform his duties. The Respondent did not accept that the Claimant had an option not to do this task simply because it ran a little close to the end of his shift. The Respondent attitude was that the Claimant should be available for the entirety of his shift and not just the parts he chose.

The Respondent says that there was never any question of the Claimant being expected to work on beyond 10pm as they always had a night driver coming to take on the train from the Red Cow Station at 10pm.

The Respondent did not make this last fact known to the Claimant but equally the Claimant did not ask this question. In any event, the Respondent believed that in offering to allow the Claimant leave the Dublin terminus five minutes before it was scheduled and timetabled to leave, demonstrated the Respondent’s Bona fides towards it’s driver – if not towards the stranded travelling public.

The Respondent Team Leader confirmed that their conversation was short and terse and whilst the Claimant says he was specifically threatened with Disciplinary Action the Team Leader says he was not, though confirmed that they hung up arguing with the Team Leader saying “I will deal with this next week”.

The Respondent conducted an investigation into the complaint against the Claimant and issued a Disciplinary sanction on foot of the subsequent Disciplinary process. A twelve month warning letter.

I have considered the evidence I have heard together with the helpful submissions prepared by both sides.

I accept that there is a dispute between the parties as to the severity of the sanction imposed. The Claimant’s representative has urged me to consider his previous unblemished record whilst the Respondent has asked me to consider the fact that the Claimant’s action was one of Gross Misconduct and any leniency shown had already been shown by not dismissing the Claimant outright.

It is interesting to note that the 2 reasons cited by the Claimant as being worrisome to him, did not form a part of any conversation he had with either of his supervisors on the night in question. He indicated to me that he had assumed he would be expected to keep going to Tallaght and/or to de-prep the train and that the fact that he was not told who would be taking over the train from him was itself evidence that there was no one to take over the driving of the train.

On balance, I find this reasoning to be faulty in circumstances where the Claimant and the Respondent confirm that these issues or worries were never raised and that the only issue raised was whether he would make it back by ten o’clock and in this regard he was being given the five minute head start.

The Claimant suggested that the trains were all running late that date but there was no evidence to back this up and the Respondent confirmed they ran on time.

I am satisfied that the Claimant refused to perform a function which it was well within his employer’s rights to ask him to perform. In those circumstances there seems to me to have been an inevitability to the triggering of an investigative/disciplinary process and once the Claimant was found to have (wilfully and knowingly) refused to undertake duties a Disciplinary sanction had to follow.

On balance I would accept that the Claimant was exposed to being dismissed for his conduct and that the Employer did indeed apply leniency by giving him the lesser sanction of the 12 month letter of warning.