ADJ-00007321

Complainant

Respondent

Parties

A Bulk Driver

A Fuel Company

Act

Dispute Reference No.

Date of Receipt

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

CA-00009909-001

24/02/2017

The Claimant has sought an investigation into a complaint made against a Long term Contractor.

The Claimant has worked as a Tanker Driver with the Employer’s business since August 2004 .The business is also supported by a Long term contractor, to service lorries, maintain pipework and storage plants .The contractor also provides tanker drivers for peak periods.

During 2016, the claimant submitted three complaints concerning this long term contractor, Mr A.

First Incident in April 2016,The claimant recorded his dissatisfaction when Mr A indicated that cameras would be installed in his Truck. This was discussed collectively by the drivers and raised with Mr LM , the claimants line Manager. Mr LM confirmed that a Contractor would not discuss an employees terms and conditions in the future .

The second incident in December, 2016 centered on a conversation between the claimant and Mr A, where the claimant understood that his job was being threatened by the augmentation of two tractor units.

The third incident, later in December included Mr A followed a tractor Unit while the claimant was lining up the trailer to go into the loading bay.

The Claimant submitted a grievance to Human Resources in Dublin dated 29 December 2016, outlining the resolution he required.

The Claimant submitted another grievance on January 3, 2017 as Mr A, his line Manager had accused him of refusing to attend a meeting on December 19. The Claimant submitted that he had merely sought representation at the meeting.

Both grievances were underpinned by the following resolution required :

“A stop to improper behaviour and intimidation …Contractor not to engage me on matters pertaining to my contract and terms and conditions. Clear defined work boundaries put in place for contractors “

On 30 December, the claimant learned that he was to be transferred from his route and replaced by the Contractor staff. He challenged this with the assistance of his Union.

On 16 January, 2017, the Claimant received the outcome of the raised grievance .The claimant was informed that the events recounted in December were disputed by Mr C, the contractor, and that he was advised to sit down with his Manager to discuss his interface with the Contractor and “ how you plan to work better together in the future “.

On January 16, 2017, the Claimant wrote to the Operations Manager (Mr OM) in pursuance of a resolution by mediation.

On 9 February, 2017, the claimant received an outcome from Mr OM denying his appeal. He referred to an enlarged video considered in the appeal, which was submitted as being at odds with the claimants submissions of the incident of 14 December, 2016.

The Claimant sought an independent investigation into his grievances to include terms of reference and interview statements. He sought a written confirmation from the Contractor that the Company Policies were honoured by him. He also sought that Mr C commit in writing that he would refrain from discussing terms and conditions of employment with directly employed staff.

The Union contended that the HR Dept. had not understood the claimant’s grievance and this had militated against an earlier resolution. The Claimant articulated his dissatisfaction in relation to the lack of resolution in the case. He was apprehensive regarding his future role and emphasised the need for external investigation.

The Employer disputed the claim and submitted that the internal grievance procedures had been exhausted in the case. The Employer also contended that extended video evidence had been reviewed , which did not support the claimants version of events. This footage was offered to the claimant and his representative.

The events in the case were clouded by an earlier fatality in a Truck in the western part of the County and this would have prompted a conversation with the contractor on Best Practice on Driver visibility. One of the contractors was actually attending a Motor Show where systems were to be reviewed. This had been discussed with the Union. The Employer was aware that the Contractor’s Business knowledge in this area far outweighed the Employers and saw the conversations as vital on fleet development.

The Contractor had confirmed to the company that he had banter with the claimant but had not engaged in improper behaviour.

The Company had invested a lot of time in seeking to resolve the claimant’s grievance up to and including an appeal meeting on January 31, 2017. The Claimant was offered access to the enlarged video footage of December 14. The Company engaged with the Union on the claimant’s grievance. Mr LM had sought to discuss matters with the claimant in December and understood that the matter was resolvable.

The Company was keen to move forward on the issue.

I have considered both parties submissions in this case and I have reflected on both presentations. The Claimant has worked for the company since 2004 and clearly intends on staying with the company. It is fair to state that he holds a very strong sense of exclusion in relation to the issues reported in 2016 .He understood that he had raised a grievance and believes that it remains unresolved.

The Employer, on their part believes that the company has processed the grievance and found it to be unfounded on appeal .The Employer did confirm that core Personnel were missing from the workplace through approved leave, which may have had a bearing on the case.

I have read the company Grievance Procedure submitted at the hearing. It became clear to me as the hearing progressed that the Union at workplace level were apprehensive of Global Human Resource issues such as potential outsourcing and changes in Operations at the company. There were times , where I observed some cross over on this agenda and in the individual issues raised by the claimant .While I understand that this is inevitable in a fast paced business and workplace, I must confine my investigation to the merits of the claimants case alone.

Open Communication is the bedrock of any employment relationship and I found that time and again the claimant expressed a strong sense that the Contractor held a protected position at the company, which caused him to feel intimidated. He confirmed that interpersonal difficulties with Mr C had pre-existed this Dispute.

I understood the Employer submission on the closer proximity of some contractors to specialist market developments and the benefits which may flow for the company from this proximity. However, there was a marked absence of reference to contractor /employee interface in the company Grievance Procedure. Given the undisputed long term presence of the Contractor at the business, I found it unusual that guidance documentation had not been incorporated for the directly employed staff. There are key distinctions in both roles and it is only fair and reasonable that each of the parties at contracting and employee level understand where they fit in terms of role demarcation on the company grid. I found a major omission in the company procedure in this regard. I realise that it is impossible to predict just where workplace conflict may arise, however, it is important to have some navigation tools available for conflict resolution.

Statutory Instrument 146/2000 serves as a Statutory Code to guide on the optimal handling of Grievance and Disciplinary procedures in this country.

Together with the case law derived from the legislation governing unfair dismissals and other aspects of employment protection, this corpus of law sets out the proper standards to be applied to the handling of grievances, discipline and matters detrimental to the rights of individual employees.

6. The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

• That employee grievances are fairly examined and processed;

• That details of any allegations or complaints are put to the employee concerned;

• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

I found a shortfall in both parties utilisation of the company grievance procedure. The claimant did not utilise the informal procedure and when he chose to activate the formal procedure, he by passed his line Manager as the first point of contact in preference to Human Resources.

“ If the formal procedure is applicable , this must be initiated by the employee completing a grievance form and providing it to the immediate line manager. This must be copied to the HR Department “

This suggests that the line Manager is the person charged with handling the grievance in the first place.

The procedure sets out that a meeting is to follow submission within 7 days. This did not happen Instead; the claimant received a response from HR which re directed him back to sit down with his line Manager. I found this to be a poor handling of a grievance by the company.

On the same day the claimant wrote to the Operations Director, outlining that the outcome of the grievance was “insufficient and disappointing “He requested Mediation in line with the grievance procedure. I could not establish any mention of Mediation on the copy of the grievance procedure submitted to me.

I noted that the Company interpreted this as an appeal of the grievance outcome, but it did not stipulate this on the application for mediation. The claimant was represented by his Union at the meeting of January 31 with the Operations Director. I found it striking that the company did not involve the contractor at this appeal stage. It may have been beneficial for the written statement submitted by the claimant to have been responded to by Mr C. I also found it unusual that the Union did not advance the case for Mediation .

I was however, particularly struck by the company analysis in the last paragraph of the letter of February 9 :

“ I am however concerned that this issue managed to escalate , for whatever reason , to the current level and I intend to discuss my concern with the local management and contractor involved. It is important that all staff and contractors work together in a positive atmosphere”

While this is a particularly incisive and perceptive commentary, I was disappointed to learn that an action plan had not been activated in this regard in advance of the hearing .

I have found some merit in the claimants Dispute before the WRC. I find that he was denied a proper platform in which to resolve his differences with the Contractor at an early stage. However, I have found that he also acted to his own detriment in not following the grievance procedure as laid down.

I was taken aback by the claimants “impact statement “ towards the conclusion of the hearing and I made it clear that matters raised had no bearing on the hearing and should be raised at the company. However, it was impossible to miss that that the claimant is not in “ a good place “ work wise and I have reflected on this in drafting my recommendations .

I have found merit in the claimants claim.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have given some thought to the parties’ submissions on how they see the claim being resolved. I cannot see that an investigation at this late stage would be beneficial to the low trust environment where the claimant sees himself. I believe trust and confidence needs to be restored for the claimant in his employment relationship and this work should start immediately through the following building blocks.

1 The Company should incorporate the role of contractor in all policies and procedures relevant to the claimant with a particular emphasis on the route to be travelled in conflict resolution between an employee and a contractor or vice versa.

2 The Company should engage with the claimant with the support of the Union to explain the distinction between his role and that of the contractor and exactly what the company expects from each role. If job descriptions exist, they should be exchanged to enable both parties to arrive at a mutual understanding and respect for each others roles.

3 The Company should engage a trained Facilitator to work with the claimant and the contractor to restore an acceptable working relationship. The Claimant should commit to this trust building exercise.

Dated:     9^th August 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

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