REVISED COPY OF ORIGINAL ADJUDICATION OFFICER DECISION/RECOMMENDATION ISSUED ON 18th DECEMBER 2017

Adjudication Reference: ADJ-00003974

Parties:

	Complainant	Respondent
Anonymised Parties	A Forklift Operator	A Multinational Manufacturer

Representatives

Emma Coffey Emma Coffey Solicitors

Paul Rochford IBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00004309-001	10/05/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00004309-002	10/05/2016

Date of Adjudication Hearing: 06/10/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and Section 13 of the Industrial Relations Acts 1969,following the referral of the complaint and dispute to me by the Director General, I inquired into the complaint and dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint and dispute.

Background:

The Complainant commenced her employment in on 8 May 2000, and in 2006 she was appointed as a forklift operator in the warehouse. She remained in that position until November 2015 and at that time she was relocated to the packaging line. The Complainant’s rate of pay at the time of the incident was an average €2,881 gross per month.

Summary of Complainant’s Case:

The Complainant submitted that on 23 November 2015 she received a letter inviting her to a Corrective Action Meeting which was to take place on 25 November 2015. The Complainant maintained that at the meeting of 25 November 2015 she was confronted by the Plant Manager and shown CCTV footage of the forklift incident that had occurred on 28th October 2015. She advised that at this meeting she was also informed of four other driving incidents that had occurred but that she had never been shown video footage of the incidents before the meeting, and where these four incidents were brought to her attention for the first time on 25 November 2015. The Complainant maintained that she was not provided with any warning with regard to having to respond to these issues. She maintained that one of the incidents was alleged to have occurred in May 2015, and where the other three incidents occurred during September 2015. She also contended that a performance review was referred to her at the meeting but she was never provided with a copy of same.

The Complainant maintained that she had never been spoken to before about any concerns with regard to her driving, and that following the meeting of 25 November 2015 she was issued with a letter that notified her she was subject to corrective action, and she received a written reminder. She was also advised that the outcome of the Corrective Action Meeting was that she was no longer permitted to drive a forklift and was therefore relocated to the pack line. The Complainant advised that the written reminder would remain on her personal file for a period of nine months. As a consequence of the disciplinary action she was not eligible for variable pay for the duration of the corrective action, and she would not have access to promotional opportunities.

The Complainant appealed this decision on 30 November 2015. At the appeal hearing she maintained that a performance review that was referred to at the Corrective Action Meeting had not been provided to her; that she had not been provided with subscription safety glasses despite requesting same and where four of the driving incidents took place while she did not have safety glasses; that she was not provided with refresher driving training despite a request for same on a number of occasions including May 2015; and that she had been working for more than 12 hours per day as a forklift driver

The Complainant submitted that the appeal hearing took place on 3 December 2015. The Appeal was heard by the Business Centre Manager who she contended took little or no consideration in relation to her working hours. She also contended that the discrimination she alleged had occurred in the manner the incident had been handled compared to her male colleagues was not considered. The Complainant further maintained that the Appeal failed to consider the fact that the written reminder had reduced her potential pay and promotion and under the circumstances she maintained that she should only have received a verbal warning.

CA-00004309-001 Complaint under Section 77 of the Employment Equality Act, 1998

With regard to being discriminated against, the Complainant submitted that she had noted numerous collisions and damage caused by fellow male forklift drivers who had not been subject to the same corrective action as she was.

In this regard, she referred to three male colleagues who she understood had been involved in a series of collisions or unsafe driving of a forklift truck. She submitted that these male colleagues had caused extensive damage to property prior to and in around the dates of the collision in which she was involved in. However, she contended that her male colleagues were never removed from their position as forklift operators. Specifically, the Complainant referred to incidents with one male colleague on 8 July, 17 October, 24 October 2014, and another date unknown where pallets had been dropped, damage had been done to a lift door, and damage occurred to bridge railing and a walkway. She also alleged that another male colleague was involved in an incident on 19 November 2014, and where he also damaged and electric box on a date unknown. She maintained that despite these incidents both of her male colleagues were allowed to remain driving. The Complainant therefore contended that she had been discriminated against on the grounds of her gender.

The Complainant further maintained that following her move from the warehouse forklift duties she experienced further harassment from her supervisor where she alleged she would have been subject to additional restrictions such as not being permitted to enter the warehouse for any purpose; that she was singled out, where she was followed when she was going to the toilets; where she was ignored and reprimanded in front of other colleagues; and where he colleagues would have been aware that the corrective action she experienced was disproportionate when compared to others. The Complainant maintained that as a consequence she was diagnosed by her GP as unfit to work between 5 October 2016 to 18 March 2017due to stress.

Accordingly the Complainant maintained that contrary to section 6 of The Employment Equality Acts 1998-2015 she had been discriminated on the gender ground when compared to her male colleagues in relation to her conditions of employment which was contrary to section 8 of the Act. She submitted that her male colleagues were not subject to the same disciplinary sanctions as she was for a similar offence. She also maintained that contrary to Section 85A of the Act she was also subjected to victimisation and harassment

CA-00004309-002 Complaint under section 13 of the Industrial Relations Act, 1969

The Complainant asserted the corrective action of removing her from her position and issuing her with a nine-month written reminder reduced her potential pay, and also removed her right for promotion. As such she maintained it was disproportionate, and in breach of company procedures where she contended that as a first instance she should have received a verbal warning. Instead she was demoted, experienced a reduction in pay and a restriction in her promotional prospects for a period of nine months, and where the sanction continues for almost 2 years.

The Complainant maintained that the Respondent did not adhere to its Corrective Action Procedure, and did not handle the appeal hearing fairly. The Complainant maintained at the appeal hearing a manager stated that the Complainant would be missed from the floor, and accordingly the Complainant believed the decision not to change the disciplinary sanction had already been made before the appeal hearing, and inferred the hearing was prejudiced and biased against her. As a consequence, she was seeking a recommendation under the Industrial Relations Act for this the sanction against her to be redressed. She maintained that the action taken against her was disproportionate, the process was unfair, and where she should only have been sanctioned with a verbal warning for her first incident.

Summary of Respondent’s Case:

The Respondent maintained that during the Complainant’s performance review in 2014 that concerns about the safety of her driving was brought to her attention. The Complainant further maintained that in May 2015 the Plant Manager had spoken to her about safety issues regarding her driving and as a consequence she was redeployed to a forklift with a camera which allowed for the monitoring of her driving. Subsequently she was involved in three incidents regarding the speed of driving in September 2014, and a further collision on 28 October 2015 which she had failed to report.

The Respondent submitted that when the issues were brought to its attention it commenced its Corrective Action Procedures and invited the Complaint to attend a Corrective Action Meeting on 25 November 2015. The Respondent further maintained that the Complainant’s manager met with her the day before the Corrective Action Meeting, and in accordance with their procedures presented the Complainant with the evidence including the CCTV footage of the alleged incidents. The Respondent maintained that the Complainant indicated that it was difficult for her to watch the CCTV footage but the manager provided the Complainant with the opportunity to review the footage.

The Corrective Action Meeting then took place on 25 November 2015 and the findings were based on the evidence provided and the Complaint’s response. The Respondent submitted that it had particular concerns with regard to the speed of the driving of the Complainant, and having considered all the evidence decided that the appropriate corrective action was to act in accordance with Stage 2 of its procedures and issue the Complainant with a written reminder, and remove her from forklift driving duties. The Respondent advised that in accordance with its procedures the written reminder lasts for a period of nine months duration, and where the sanction also includes the Complainant being removed from the variable pay and access to promotion opportunities.

The Respondent advised this decision was based on its safety concerns and where it’s procedure allows it to exercise a Stage 2 outcome without having to first provide the Complainant with the Stage 1 verbal reminder. Furthermore, the Respondent maintained that the Complainant had been advised of safety concerns regarding her driving at her performance review in 2014, and where she was again spoken to in May 2015 prior to the alleged incidents in September 2015 and October 2015. It therefore argued that informal discussions had taken place with the Complainant, and particularly in light of the complaint failing to report the incidents and the speed of her driving at the time of the incident in October 2015 that it was felt appropriate to issue a Stage 2 written reminder and a remove from her forklift driving duties due to safety concerns.

With regard to the appeal hearing, the Respondent submitted that it conducted the appeal hearing where it fairly considered the points raised by the Complainant which included consideration of not providing the Complainant with a copy of her performance review meeting from May 2014; the availability of prescription safety glasses; the alleged failure to provide the Complainant with refresher driver training in May 2015; and where the Complainant maintained she had been treated more harshly than her male colleagues.

The Respondent submitted notes of the appeal hearing which corroborated that the performance review was a matter of record, and where the Complainant had received feedback with regard to her safe driving. With regard to the availability of prescription safety glasses, the Respondent maintained that this was not central to the driving behaviour of the Complainant where the written reminder related to the speed of driving, a lack of concentration, not looking behind, and a lack of concern for bumps. With regard to the refresher training, the Respondent maintained that it had not denied the Complainant refresher training as such training takes place every three years and that the Complainant’s refresher driving was due during 2015. It maintained that it was the speed of driving which was of cause of concern and that driving too fast related to bad habits that she had developed and this was not a matter that would have been central in the refresher training.

The Respondent further maintained that it had not treated the Complainant inconsistently when compared to other employees. Whilst it was not in a position to discuss specific instances of individual employees, the Respondent maintained that in each case all instances are taken into account and considered, and the Complainant would have been treated similarly in her case. The Respondent maintained that specific issue relating to the Complainant was that concerns existed in relation to her driving to the point that she was allocated a camera equipped forklift, that she did not report damage she caused on 28 October 2015, and as she had not been aware that she had damaged the door it was a significant matter, particularly in light of the speed of her driving. The Respondent contended this was the objective criteria it applied in the Complainant’s case and that was the basis of the decision made in relation to the Complainant.

CA-00004309-001 Complaint under Section 77 of the Employment Equality Act, 1998

In light of the above, and in response to the complaint that the Complainant had been discriminated on the grounds of gender, the Respondent strongly refuted this allegation. The Respondent acknowledged that a number of incidents had happened with regard to three named male drivers, and where during the hearing within it was disputed whether some of the incidents the Complainant referred to had in fact been reported. Notwithstanding, the Respondent submitted that where incidents regarding the named male drivers had been brought to its attention and had been reported it would have dealt with these complaints within the Corrective Action Procedures, and where two male drivers were in fact subject to corrective action sanctions. The Respondent acknowledged that whilst in the occasions referred to by the Complainant that the sanctions imposed on the male drivers did not lead to a written reminder at that point in time, it did nonetheless take corrective actions decisions based on the evidence available to them and the response from the drivers in question. The Respondent maintained that in their view the speed concerns of the Complainant were of a greater safety risk than the incidents regarding the named male drivers. Notwithstanding the Respondent advised that recently one of the male drivers had been issued with a written reminder, removed from forklift duties and where he was treated similarly to the Complainant.

The Respondent also denied that the Complainant was subject to further harassment and maintained that a prima facie case did not exist to support such an assertion.

CA-00004309-002 Complaint under section 13 of the Industrial Relations Act, 1969

As noted in the summary above, the Respondent maintained that it applied fair procedures, that the Complainant had been advised of her driving habits in May 2014, and again during 2015 she was assigned to a forklift fitted with a safety camera. It contended that in light of the driving habits and the particular incidents in September and October 2015 it’s corrective action against the Complainant was warranted. As her driving was a genuine safety concern, and where the Complainant failed to report the incident in October, the Respondent maintained that the sanction imposed was proportionate.

In response to the comments made by one of the managers at the appeal hearing that the Complainant would be missed in the warehouse, the Respondent maintained that this was said at the end of the meeting as a general comment. It reflected the regard that others had of the Complainant’s productivity and approach to work. The Respondent submitted that the comment was not an indication that a decision had been made not to uphold the appeal. The Respondent stated it addressed the Complainant’s observations of this statement at the time and during the appeal hearing, and clarified at that time what was meant by the comment, and this was recorded in the meeting minutes contemporaneously. The Respondent therefore maintained that having considered all the factors, and in particular its genuine safety concerns regarding the Complainant’s driving, that it had treated her fairly and had heard her appeal properly.

Findings and Conclusions:

CA-00004309-001 Complaint under Section 77 of the Employment Equality Act, 1998

The Complainant has alleged that she was discriminated at work in relation to her conditions of employment due to her gender. In effect, she alleged that she was treated less favourably than three named male colleagues with regard to the corrective actions procedures that applied to her when compared to the male colleagues.

The Employment Equality Act 1998 as amended, defines under S6 that discrimination shall be taken to occur when a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as ‘discriminatory grounds’). With reference to the case within, the discriminatory groundis where one is a woman and the other is a man(in this Act referred to as “the gender ground”).

In addition, Section 8(1)(b) of the Act, an employer shall not discriminate in relation to conditions of employment.

Having considered the evidence I am satisfied that the Respondent had a genuine and objective concern regarding the driving behaviour of the Complainant, and as such it was reasonable for it to investigate this matter under its policy and decide whether it amounted to a breach of its Corrective Action Procedures. I am also satisfied that based on the evidence provided that the Respondent would have acted similarly with regard to the named male colleagues where the evidence presented supports that two male colleagues were also subject to a review of their behaviours under the Corrective Action Procedures when they were brought to the attention of the Respondent. Indeed, one of the male colleagues referred to has since been taken off forklift driving duties and treated in a similar manner under the Corrective Action Procedures.

It is also acknowledged that each case has to be considered on its own merits, and as such it would not be reasonable that the outcome of one Corrective Action Procedure ought to have an identical outcome to another, irrespective of whether the issues being reviewed were similar. What is central to this case is that the Complainant had been subject to observations on her driving safety before the Corrective Action Procedure in November 2015, and where due to this she was assigned a forklift that was fitted with a safety camera to monitor her driving.

Accordingly, I find that the Corrective Action Procedure conducted by the Respondent against the Complainant was not as a direct or indirect consequence of the Complainant’s gender. Similarly, I find that the Complainant’s male colleagues were not treated more favourably with regard the management of their driving.

With regard to the complaint of harassment, Section 14A refers to harassment as follows:

14A (1) For the purposes of this Act, where—

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—

employed at that place or by the same employer,

the victim’s employer, or

a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

Furthermore Section 14A(7) of the Act states

(a) In this section—

references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

As the Complainant has failed to identify specific incidents as to where such harassment occurred on the gender ground I do not find she was subject to harassment as defined in the Act.

CA-00004309-002 Complaint under section 13 of the Industrial Relations Act, 1969

Having considered the evidence presented by the parties I am satisfied that the driving behaviour of the Complainant warranted an investigation. In this regard, the incident of 28 October 2015 was progressed through the respondents Corrective Action Policy. A review of the policy explains that the procedures should follow a progressive process from informal to formal, and where the formal process occurs in exceptional circumstances when either the informal approach has not been successful, or the alleged failing or offence of an employee is considered of a sufficiently serious nature, a more formal procedure is available.

The procedure requires that at least one working day prior to a Corrective Action Meeting that the immediate supervisor will meet the employee to provide the employee with all necessary information and evidence for the formal meeting. The policy then lays out the procedure to be followed during a Collective Action Meeting.

The policy further outlines that the outcome of a Corrective Action Meeting may be one of the following:

Stage 1: Recorded verbal reminder-six months duration;

Stage 2: Written reminder-nine months duration;

Stage 3: Final reminder-12 months duration;

Stage 4: Termination of Employment.

The policy identifies that misconduct can include breaches of standards or behaviour and rules and regulations. Such misconduct includes actions that are dangerous and may cause injury or damage to any individual or property.

Based on the policy and the concerns regarding the Complainant’s dangerous driving, and failing to report an accident, I am satisfied that the implementation of the Corrective Action Policy was appropriate and reasonable.

I find that the Complainant was afforded her rights as laid out within the policy, including her right to appeal. I am also satisfied that the evidence presented supported misconduct regarding the Complainant’s driving behaviour. The evidence presented also supports that prior to the Corrective Action Meeting the Complainant would have been subject to informal discussions regarding her driving from her immediate supervisor, and where the outcome of these concerns was that she would have to drive a forklift with a safety camera to monitor her driving behaviour.

The issue therefore is whether the sanction of nine months duration i.e. the Stage 2 written reminder was proportionate.

In this regard, the evidence supports that at the time of the incident in October 2015 that the Complainant appeared to be a well regarded as a productive employee. It is also noted that the decision to impose a Stage 2 written reminder was also influenced by incidents that had occurred in September 2015, but these incidents had never been brought to the attention of the Complainant until 25 November 2015. There was also no evidence provided which indicates that the Complainant would be subject to a corrective action sanction if her driving did not improve. The only formal note with regard to concerns with her driving related to her performance review of 2014. In this review the speed of operation of the forklift was identified as an improved requirement, and where it was also noted that the Complainant had improved in all areas since coming to the warehouse, and that she was conscientious and helpful.

Having reviewed the policy which clearly sets out a staged process of corrective action; the fact that the incidents in September were being relied upon by the Respondent although these issues had never been raised with the Complainant prior to the Corrective Action Process; that it was the Complainant’s first time to be subject to the Corrective Action Policy in relation to her driving; and that it is noted that she was productive, helpful and conscientious, I find that a Stage 1 sanction would have been more appropriate. It is noted that by imposing the Stage 1 sanction the Complainant would also experience the corrective action consequences which includes not being eligible for variable pay or management bonus; access to promotional opportunities been prohibited; and a pro-rated approach to her salary review. I do not find the removal of the Complainant from her driving duties was unwarranted, but consideration of the ongoing impact of this decision on her career and income should be made in light of the fact that she has been driving since 2006, and where it is probable that following retraining and the warning that her driving habits would be likely to improve.

Decision/Recommendation:

CA-00004309-001 Complaint under Section 77 of the Employment Equality Act, 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

As I have not found that either discrimination or harassment on the gender ground has occurred I do not find in favour of the Complainant. I therefore decide that the complaint fails.

CA-00004309-002 Complaint under section 13 of the Industrial Relations Act, 1969

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

Having reviewed the evidence and found that the Stage 2 Corrective Action sanction awarded was disproportionate, I recommend that a more appropriate sanction should be a Stage 1 Verbal Reminder, but that the removal from driving duties in light of the serious concerns regarding Health and Safety was appropriate. The consequences of the Corrective Action should therefore be applied for the six-month period commencing from 26 November 2015.

I further recommend that the Complainant’s disciplinary record be adjusted to record the Stage 1 sanction, this being more appropriate under the circumstances, and that the Respondent reinstate any sanctions that may have occurred for the remaining three months after the six-month corrective action period.

The issue of the Complainant’s suitability to drive a forklift in the future is a matter for the Respondent. I am satisfied that the safety concerns regarding the Complainant’s driving were warranted and her removal form driving duties was a safety matter. It would not be appropriate for me to make any direction with regard to her future driving responsibilities other than to observe that on the face of it the ongoing restriction with regard to her driving duties, without a proper assessment of her driving skills, appears somewhat disproportionate.

Notwithstanding the above, I recommend consideration be given to affording the Complaint with the opportunity to be fairly assessed for driving at the earliest opportunity, and where she is provided with appropriate training to be sufficiently prepared for such a test. Should her driving assessment be successful I further recommend that consideration be given to rostering the Complainant for driving duties in accordance with the Respondent’s normal practices regarding the redeployment of staff to their former role after a disciplinary procedure or in the absence of such a precedent that she be provided with an opportunity to be redeployed to driving duties when the next vacancy occurs.

Dated: 18th December 2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:

Discrimination, Harassment, Employment Equality Act, Appropriateness of Disciplinary Sanction, Industrial Relations Act.

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003974

Parties:

Complainant / Respondent

Anonymised Parties A Forklift Operator / A Multinational Manufacturer

Representatives Emma Coffey, Emma Coffey Solicitors / Paul Rochford IBEC

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00004309-001 10/05/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00004309-002 10/05/2016

Date of Adjudication Hearing: 06/10/2017 Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

Background:

This complaint and dispute refers to a General Operative who was employed as a forklift operator with the Respondent and has alleged that she was discriminated on the gender ground in relation to the Respondent’s handling of its corrective action policy towards her when compared to male colleagues. The Complainant has also submitted that the Respondent did not adhere to its Corrective Action Procedures. The Complainant commenced her employment in on 8 May 2000, and in 2006 she was appointed as a forklift operator in the warehouse. She remained in that position until November 2015 and at that time she was relocated to the packaging line. The Complainant’s rate of pay at the time of the incident was an average €2,881 gross per month.

Summary of Complainant’s Case:

The Complainant advised that on 28 October 2015 when driving a forklift, she was involved in a collision with a loading bay roller door. She maintained that was not aware of the incident at the time, and only became aware of the collision when she was advised of it at a meeting with the respondent on 24 November 2015. The Complainant submitted that on 23 November 2015 she received a letter inviting her to a Corrective Action Meeting which was to take place on 25 November 2015. The Complainant maintained that at the meeting of 25 November 2015 she was confronted by the Plant Manager and shown CCTV footage of the forklift incident that had occurred on 28th October 2015. She advised that at this meeting she was also informed of four other driving incidents that had occurred but that she had never been shown video footage of the incidents before the meeting, and where these four incidents were brought to her attention for the first time on 25 November 2015. The Complainant maintained that she was not provided with any warning with regard to having to respond to these issues. She maintained that one of the incidents was alleged to have occurred in May 2015, and where the other three incidents occurred during September 2015. She also contended that a performance review was referred to her at the meeting but she was never provided with a copy of same. The Complainant maintained that she had never been spoken to before about any concerns with regard to her driving, and that following the meeting of 25 November 2015 she was issued with a letter that notified her she was subject to corrective action, and she received a written reminder. She was also advised that the outcome of the Corrective Action Meeting was that she was no longer permitted to drive a forklift and was therefore relocated to the pack line. The Complainant advised that the written reminder would remain on her personal file for a period of nine months. As a consequence of the disciplinary action she was not eligible for variable pay for the duration of the corrective action, and she would not have access to promotional opportunities. The Complainant appealed this decision on 30 November 2015. At the appeal hearing she maintained that a performance review that was referred to at the Corrective Action Meeting had not been provided to her; that she had not been provided with subscription safety glasses despite requesting same and where four of the driving incidents took place while she did not have safety glasses; that she was not provided with refresher driving training despite a request for same on a number of occasions including May 2015; and that she had been working for more than 12 hours per day as a forklift driver The Complainant submitted that the appeal hearing took place on 3 December 2015. The Appeal was heard by the Business Centre Manager who she contended took little or no consideration in relation to her working hours. She also contended that the discrimination she alleged had occurred in the manner the incident had been handled compared to her male colleagues was not considered. The Complainant further maintained that the Appeal failed to consider the fact that the written reminder had reduced her potential pay and promotion and under the circumstances she maintained that she should only have received a verbal warning. CA-00004309-001 Complaint under Section 77 of the Employment Equality Act, 1998 With regard to being discriminated against, the Complainant submitted that she had noted numerous collisions and damage caused by fellow male forklift drivers who had not been subject to the same corrective action as she was. In this regard, she referred to three male colleagues who she understood had been involved in a series of collisions or unsafe driving of a forklift truck. She submitted that these male colleagues had caused extensive damage to property prior to and in around the dates of the collision in which she was involved in. However, she contended that her male colleagues were never removed from their position as forklift operators. Specifically, the Complainant referred to incidents with one male colleague on 8 July, 17 October, 24 October 2014, and another date unknown where pallets had been dropped, damage had been done to a lift door, and damage occurred to bridge railing and a walkway. She also alleged that another male colleague was involved in an incident on 19 November 2014, and where he also damaged and electric box on a date unknown. She maintained that despite these incidents both of her male colleagues were allowed to remain driving. The Complainant therefore contended that she had been discriminated against on the grounds of her gender. The Complainant further maintained that following her move from the warehouse forklift duties she experienced further harassment from her supervisor where she alleged she would have been subject to additional restrictions such as not being permitted to enter the warehouse for any purpose; that she was singled out, where she was followed when she was going to the toilets; where she was ignored and reprimanded in front of other colleagues; and where he colleagues would have been aware that the corrective action she experienced was disproportionate when compared to others. The Complainant maintained that as a consequence she was diagnosed by her GP as unfit to work between 5 October 2016 to 18 March 2017due to stress. Accordingly the Complainant maintained that contrary to section 6 of The Employment Equality Acts 1998-2015 she had been discriminated on the gender ground when compared to her male colleagues in relation to her conditions of employment which was contrary to section 8 of the Act. She submitted that her male colleagues were not subject to the same disciplinary sanctions as she was for a similar offence. She also maintained that contrary to Section 85A of the Act she was also subjected to victimisation and harassment CA-00004309-002 Complaint under section 13 of the Industrial Relations Act, 1969 The Complainant asserted the corrective action of removing her from her position and issuing her with a nine-month written reminder reduced her potential pay, and also removed her right for promotion. As such she maintained it was disproportionate, and in breach of company procedures where she contended that as a first instance she should have received a verbal warning. Instead she was demoted, experienced a reduction in pay and a restriction in her promotional prospects for a period of nine months, and where the sanction continues for almost 2 years. The Complainant maintained that the Respondent did not adhere to its Corrective Action Procedure, and did not handle the appeal hearing fairly. The Complainant maintained at the appeal hearing a manager stated that the Complainant would be missed from the floor, and accordingly the Complainant believed the decision not to change the disciplinary sanction had already been made before the appeal hearing, and inferred the hearing was prejudiced and biased against her. As a consequence, she was seeking a recommendation under the Industrial Relations Act for this the sanction against her to be redressed. She maintained that the action taken against her was disproportionate, the process was unfair, and where she should only have been sanctioned with a verbal warning for her first incident.

Summary of Respondent’s Case:

The Respondent refuted that it had either failed to adhere to its corrective action policy, or that it had discriminated the Complainant on the grounds of equality in relation to the Complainant’s gender with regard to her conditions of employment. The Respondent maintained that during the Complainant’s performance review in 2014 that concerns about the safety of her driving was brought to her attention. The Complainant further maintained that in May 2015 the Plant Manager had spoken to her about safety issues regarding her driving and as a consequence she was redeployed to a forklift with a camera which allowed for the monitoring of her driving. Subsequently she was involved in three incidents regarding the speed of driving in September 2014, and a further collision on 28 October 2015 which she had failed to report. The Respondent submitted that when the issues were brought to its attention it commenced its Corrective Action Procedures and invited the Complaint to attend a Corrective Action Meeting on 25 November 2015. The Respondent further maintained that the Complainant’s manager met with her the day before the Corrective Action Meeting, and in accordance with their procedures presented the Complainant with the evidence including the CCTV footage of the alleged incidents. The Respondent maintained that the Complainant indicated that it was difficult for her to watch the CCTV footage but the manager provided the Complainant with the opportunity to review the footage. The Corrective Action Meeting then took place on 25 November 2015 and the findings were based on the evidence provided and the Complaint’s response. The Respondent submitted that it had particular concerns with regard to the speed of the driving of the Complainant, and having considered all the evidence decided that the appropriate corrective action was to act in accordance with Stage 2 of its procedures and issue the Complainant with a written reminder, and remove her from forklift driving duties. The Respondent advised that in accordance with its procedures the written reminder lasts for a period of nine months duration, and where the sanction also includes the Complainant being removed from the variable pay and access to promotion opportunities. The Respondent advised this decision was based on its safety concerns and where it’s procedure allows it to exercise a Stage 2 outcome without having to first provide the Complainant with the Stage 1 verbal reminder. Furthermore, the Respondent maintained that the Complainant had been advised of safety concerns regarding her driving at her performance review in 2014, and where she was again spoken to in May 2015 prior to the alleged incidents in September 2015 and October 2015. It therefore argued that informal discussions had taken place with the Complainant, and particularly in light of the complaint failing to report the incidents and the speed of her driving at the time of the incident in October 2015 that it was felt appropriate to issue a Stage 2 written reminder and a remove from her forklift driving duties due to safety concerns. With regard to the appeal hearing, the Respondent submitted that it conducted the appeal hearing where it fairly considered the points raised by the Complainant which included consideration of not providing the Complainant with a copy of her performance review meeting from May 2014; the availability of prescription safety glasses; the alleged failure to provide the Complainant with refresher driver training in May 2015; and where the Complainant maintained she had been treated more harshly than her male colleagues. The Respondent submitted notes of the appeal hearing which corroborated that the performance review was a matter of record, and where the Complainant had received feedback with regard to her safe driving. With regard to the availability of prescription safety glasses, the Respondent maintained that this was not central to the driving behaviour of the Complainant where the written reminder related to the speed of driving, a lack of concentration, not looking behind, and a lack of concern for bumps. With regard to the refresher training, the Respondent maintained that it had not denied the Complainant refresher training as such training takes place every three years and that the Complainant’s refresher driving was due during 2015. It maintained that it was the speed of driving which was of cause of concern and that driving too fast related to bad habits that she had developed and this was not a matter that would have been central in the refresher training. The Respondent further maintained that it had not treated the Complainant inconsistently when compared to other employees. Whilst it was not in a position to discuss specific instances of individual employees, the Respondent maintained that in each case all instances are taken into account and considered, and the Complainant would have been treated similarly in her case. The Respondent maintained that specific issue relating to the Complainant was that concerns existed in relation to her driving to the point that she was allocated a camera equipped forklift, that she did not report damage she caused on 28 October 2015, and as she had not been aware that she had damaged the door it was a significant matter, particularly in light of the speed of her driving. The Respondent contended this was the objective criteria it applied in the Complainant’s case and that was the basis of the decision made in relation to the Complainant. CA-00004309-001 Complaint under Section 77 of the Employment Equality Act, 1998 In light of the above, and in response to the complaint that the Complainant had been discriminated on the grounds of gender, the Respondent strongly refuted this allegation. The Respondent acknowledged that a number of incidents had happened with regard to three named male drivers, and where during the hearing within it was disputed whether some of the incidents the Complainant referred to had in fact been reported. Notwithstanding, the Respondent submitted that where incidents regarding the named male drivers had been brought to its attention and had been reported it would have dealt with these complaints within the Corrective Action Procedures, and where two male drivers were in fact subject to corrective action sanctions. The Respondent acknowledged that whilst in the occasions referred to by the Complainant that the sanctions imposed on the male drivers did not lead to a written reminder at that point in time, it did nonetheless take corrective actions decisions based on the evidence available to them and the response from the drivers in question. The Respondent maintained that in their view the speed concerns of the Complainant were of a greater safety risk than the incidents regarding the named male drivers. Notwithstanding the Respondent advised that recently one of the male drivers had been issued with a written reminder, removed from forklift duties and where he was treated similarly to the Complainant. The Respondent also denied that the Complainant was subject to further harassment and maintained that a prima facie case did not exist to support such an assertion. CA-00004309-002 Complaint under section 13 of the Industrial Relations Act, 1969 As noted in the summary above, the Respondent maintained that it applied fair procedures, that the Complainant had been advised of her driving habits in May 2014, and again during 2015 she was assigned to a forklift fitted with a safety camera. It contended that in light of the driving habits and the particular incidents in September and October 2015 it’s corrective action against the Complainant was warranted. As her driving was a genuine safety concern, and where the Complainant failed to report the incident in October, the Respondent maintained that the sanction imposed was proportionate. In response to the comments made by one of the managers at the appeal hearing that the Complainant would be missed in the warehouse, the Respondent maintained that this was said at the end of the meeting as a general comment. It reflected the regard that others had of the Complainant’s productivity and approach to work. The Respondent submitted that the comment was not an indication that a decision had been made not to uphold the appeal. The Respondent stated it addressed the Complainant’s observations of this statement at the time and during the appeal hearing, and clarified at that time what was meant by the comment, and this was recorded in the meeting minutes contemporaneously. The Respondent therefore maintained that having considered all the factors, and in particular its genuine safety concerns regarding the Complainant’s driving, that it had treated her fairly and had heard her appeal properly.

Findings and Conclusions:

CA-00004309-001 Complaint under Section 77 of the Employment Equality Act, 1998 The Complainant has alleged that she was discriminated at work in relation to her conditions of employment due to her gender. In effect, she alleged that she was treated less favourably than three named male colleagues with regard to the corrective actions procedures that applied to her when compared to the male colleagues. The Employment Equality Act 1998 as amended, defines under S6 that discrimination shall be taken to occur when a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as ‘discriminatory grounds’). With reference to the case within, the discriminatory groundis where one is a woman and the other is a man(in this Act referred to as “the gender ground”). In addition, Section 8(1)(b) of the Act, an employer shall not discriminate in relation to conditions of employment. Having considered the evidence I am satisfied that the Respondent had a genuine and objective concern regarding the driving behaviour of the Complainant, and as such it was reasonable for it to investigate this matter under its policy and decide whether it amounted to a breach of its Corrective Action Procedures. I am also satisfied that based on the evidence provided that the Respondent would have acted similarly with regard to the named male colleagues where the evidence presented supports that two male colleagues were also subject to a review of their behaviours under the Corrective Action Procedures when they were brought to the attention of the Respondent. Indeed, one of the male colleagues referred to has since been taken off forklift driving duties and treated in a similar manner under the Corrective Action Procedures. It is also acknowledged that each case has to be considered on its own merits, and as such it would not be reasonable that the outcome of one Corrective Action Procedure ought to have an identical outcome to another, irrespective of whether the issues being reviewed were similar. What is central to this case is that the Complainant had been subject to observations on her driving safety before the Corrective Action Procedure in November 2015, and where due to this she was assigned a forklift that was fitted with a safety camera to monitor her driving. Accordingly, I find that the Corrective Action Procedure conducted by the Respondent against the Complainant was not as a direct or indirect consequence of the Complainant’s gender. Similarly, I find that the Complainant’s male colleagues were not treated more favourably with regard the management of their driving. With regard to the complaint of harassment, Section 14A refers to harassment as follows:

14A (1) For the purposes of this Act, where—

employed at that place or by the same employer, the victim’s employer, or a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and(ii) either—the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, orit could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

Furthermore Section 14A(7) of the Act states

(a) In this section—

references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

As the Complainant has failed to identify specific incidents as to where such harassment occurred on the gender ground I do not find she was subject to harassment as defined in the Act.

CA-00004309-002 Complaint under section 13 of the Industrial Relations Act, 1969 Having considered the evidence presented by the parties I am satisfied that the driving behaviour of the Complainant warranted an investigation. In this regard, the incident of 28 October 2015 was progressed through the respondents Corrective Action Policy. A review of the policy explains that the procedures should follow a progressive process from informal to formal, and where the formal process occurs in exceptional circumstances when either the informal approach has not been successful, or the alleged failing or offence of an employee is considered of a sufficiently serious nature, a more formal procedure is available. The procedure requires that at least one working day prior to a Corrective Action Meeting that the immediate supervisor will meet the employee to provide the employee with all necessary information and evidence for the formal meeting. The policy then lays out the procedure to be followed during a Collective Action Meeting. The policy further outlines that the outcome of a Corrective Action Meeting may be one of the following:

Stage 1: Recorded verbal reminder-six months duration;

Stage 2: Written reminder-nine months duration;

Stage 3: Final reminder-12 months duration;

Stage 4: Termination of Employment.

The policy also advises that during corrective action sanction, employees will not be eligible for variable pay or management bonus, access to promotional opportunities will be prohibited, and where applicable salary review dates would be delayed/prorated for the period of the corrective action. E.g. for Stage 1 the review dates will be pushed forward six months are prorated for six months only for an annual salary review. The policy identifies that misconduct can include breaches of standards or behaviour and rules and regulations. Such misconduct includes actions that are dangerous and may cause injury or damage to any individual or property. Based on the policy and the concerns regarding the Complainant’s dangerous driving, and failing to report an accident, I am satisfied that the implementation of the Corrective Action Policy was appropriate and reasonable. I find that the Complainant was afforded her rights as laid out within the policy, including her right to appeal. I am also satisfied that the evidence presented supported misconduct regarding the Complainant’s driving behaviour. The evidence presented also supports that prior to the Corrective Action Meeting the Complainant would have been subject to informal discussions regarding her driving from her immediate supervisor, and where the outcome of these concerns was that she would have to drive a forklift with a safety camera to monitor her driving behaviour. The issue therefore is whether the sanction of nine months duration i.e. the Stage 2 written reminder was proportionate. In this regard, the evidence supports that at the time of the incident in October 2015 that the Complainant appeared to be a well regarded as a productive employee. It is also noted that the decision to impose a Stage 2 written reminder was also influenced by incidents that had occurred in September 2015, but these incidents had never been brought to the attention of the Complainant until 25 November 2015. There was also no evidence provided which indicates that the Complainant would be subject to a corrective action sanction if her driving did not improve. The only formal note with regard to concerns with her driving related to her performance review of 2014. In this review the speed of operation of the forklift was identified as an improved requirement, and where it was also noted that the Complainant had improved in all areas since coming to the warehouse, and that she was conscientious and helpful. Having reviewed the policy which clearly sets out a staged process of corrective action; the fact that the incidents in September were being relied upon by the Respondent although these issues had never been raised with the Complainant prior to the Corrective Action Process; that it was the Complainant’s first time to be subject to the Corrective Action Policy in relation to her driving; and that it is noted that she was productive, helpful and conscientious, I find that a Stage 1 sanction would have been more appropriate. It is noted that by imposing the Stage 1 sanction the Complainant would also experience the corrective action consequences which includes not being eligible for variable pay or management bonus; access to promotional opportunities been prohibited; and a pro-rated approach to her salary review. I do not find the removal of the Complainant from her driving duties was unwarranted, but consideration of the ongoing impact of this decision on her career and income should be made in light of the fact that she has been driving since 2006, and where it is probable that following retraining and the warning that her driving habits would be likely to improve.

Decision:

CA-00004309-001 Complaint under Section 77 of the Employment Equality Act, 1998 Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. As I have not found that either discrimination or harassment on the gender ground has occurred I do not find in favour of the Complainant. I therefore decide that the complaint fails. CA-00004309-002 Complaint under section 13 of the Industrial Relations Act, 1969 Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. Having reviewed the evidence and found that the Stage 2 Corrective Action sanction awarded was disproportionate, I recommend that a more appropriate sanction should be a Stage 1 Verbal Reminder, but that the removal from driving duties in light of the serious concerns regarding Health and Safety was appropriate. The consequences of the Corrective Action should therefore be applied for the six-month period commencing from 26 November 2015 I further recommend that the Complainant’s disciplinary record be adjusted to record the Stage 1 sanction, this being more appropriate under the circumstances, and that the Respondent reinstate any sanctions that may have occurred for the remaining three months after the six-month corrective action period. The issue of the Complainant’s suitability to drive a forklift in the future is a matter for the Respondent. I am satisfied that the safety concerns regarding the Complainant’s driving were warranted and her removal form driving duties was a safety matter. It would not be appropriate for me to make any recommendation with regard to her future driving responsibilities other than to observe that on the face of it the ongoing restriction with regard to her driving duties, without a proper assessment of her driving skills, appears somewhat disproportionate.

Dated: 18th December 2017 Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: Discrimination, Harassment, Employment Equality Act, Appropriateness of Disciplinary Sanction, Industrial Relations Act.