ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001723

Dispute for Resolution:

Date of Adjudication Hearing: 23/09/2016

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

By a Workplace Relations Complaint Form Received on the 2^nd of February 2016, the Complainant (a worker as defined) herein has referred an appropriate dispute for adjudication by the Workplace Relations Commission. In accordance with Section 41(4) of the Workplace Relations Act, 2015 the Director General has referred the dispute to an Adjudication Officer for the purpose of making the appropriate inquiries into the dispute and to allow for the presentation of all relevant evidence, including oral evidence and documentary evidence as may be appropriate.

Attendance at Hearing:

A Supervisor in Waste Management -v- A Local Authority

Complainant’s Submission and Presentation:

The Complainant has been engaged with the Respondent Employer since 1996 and continues in this employment up to the date of the hearing.

The Complainant herein was initially disciplined for a refusal to work alongside an individual who was placed on his shift and who it seems (and the parties agreed) had some sort of a record which allowed the Complainant to believe that this individual might pose a danger to the Complainant in the workplace. The Complainant put the Employer on Notice of his misgivings and eventually went home as he believed his concerns had not been adequately addresses. The Complainant was a shift Supervisor and in sanctioning the Complainant for refusing to carry out his job the Respondent acknowledged that it placed a more onerous duty on the Complainant in assessing the merits of the Disciplinary process. The initial sanction imposed was a two day unpaid suspension and a formal written warning.

An appeal on the grounds that not sufficient weight had been given to the extenuating circumstances put forward by the Complainant as well as severity of sanction for something being described as a “serious breach of discipline”. The sanction was reduced to a one day suspension.

During the course of the Appeal hearing an issue regarding the Complainant’s entitlement to “act-up” was aired, as it seemed to have been silently interfered with as part of the Disciplinary process. It has been stated in evidence that there are financial implications attaching to the loss of this privilege which had been lost to him at about the time that the Complainant was undergoing this process. The acting up issue was not addressed as part of the Appeal.

A second right of Appeal existed and was availed of whilst this process does once again look at the issues raised, it also ultimately moves to affirm the outcome. It is worth noting that in this final letter (17^th December 2015) of the Admin Officer who heard the second Appeal the “acting up” issue is referred to though the assertion is that any removal from acting up did not form a part of the Disciplinary Appeal process in November of that year.

Respondent’s Submission and Presentation:

The Respondent impressed upon the Adjudication process that the Disciplinary response to the Complainant’s insubordination was proportionate and reasonable in all the circumstances.

Having regard to the second issue, The Respondent described the acting allowance as certainly having formed a part of the Complainant’s income from time to time but that the eligibility to act up was not a guarantee of elevation. So that from time to time the Complainant would receive an acting up allowance where an Inspector was unavailable through annual leave or unexpected illness. There was an informality to the arrangement between staff members but there was no suggestion that a person who’d become used to acting up to a particular Inspector would in some way become the heir apparent when that Inspector moved on. So it was that the Complainant had misconstrued the situation when he believed he should have been allowed to act up or be elevated for a 24 week period when the person to whom he normally acted up had moved permanently. As this was a permanent move the Respondent urged that the Complainant was not entitled to promotion.

Decision:

I have carefully considered the evidence adduced in this matter. I am quite satisfied that the Complainant’s actions – even where there was a role played by the Health and Safety Officer - was indeed an act of insubordination which was bound to be acted upon by the Respondent Employer. On balance, the sanction applied was within the appropriate range and the Complainant cannot make the case that his various concerns, together with his personal and mitigating circumstances were not reflected in the outcome and in the deliberations as I believe is evidenced in the comprehensive paperwork attaching to this process.

Having regard to the issue of losing out on the acting up monies, there is an irresistible inference being drawn by the Complainant that the loss of this privilege is as a direct result of the ongoing Disciplinary process. The Respondent have asserted that this is an unfortunate question of timing and that the Complainant could never have thought that he had the eligibility to act up for a period as long as 24 weeks.

I find that the Complainant was unfairly treated insofar as the explanation for what was happening with regards to the “acting up” was not given to him in a timely manner. I cannot find that the Complainant was entitled to 24 weeks allowance but would make a recommendation that a once off payment of €800.00 in respect of 3 or 4 weeks acting up should be paid in these singular circumstances

Dated:   8^th May 2017