ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00005659
Dispute:
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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-00007860-001 | 27/10/2016 |
Date of Adjudication Hearing: 15/03/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Location of Hearing: Radisson Blu Hotel Cork
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The claimant referred an appeal of a Final Written warning issued to him by the respondent on 24 August, 2016. |
Summary of Complainant’s Case:
The claimant is a Polish national who has worked as a driver for the respondent since October 2009.He is one of 12 drivers who operate a home delivery service.
The claimant submits that he worked without incident until June 20, 2016, when on returning from completion of deliveries; his mobile phone rang. It was a personal call and he did not have a hands free set. The complainants representative detailed that he slowed the van down and had practically stopped to answer the phone. He then got out of the van to open the gate into the delivery yard.
The claimant recalled that he was approached by his Manager, Mr D in an aggressive manner stating
“It is illegal to be driving while being on the mobile phone; you are going to get a disciplinary for this”. The claimant apologised.
On June 23, the claimant attended an investigation hearing in the company of his Shop Steward .He contended that he was met by a clear bias when the Investigator , Ms A stated : “ This investigation is because you were using your phone while driving “.
He submitted that he was denied a witness statement , which Ms A confirmed was in existence .after the hearing , the claimant received the witness statement of Mr D .dated June 20 .
He was invited to an investigation outcome meeting to take place on July 7; 2016.The matter was placed for a Disciplinary hearing by the respondent.
The complainant was dissatisfied with the disciplinary hearing and understood that he had been denied fair procedures when he was asked only one direct question. He stated that his Shop Stewards submission was ignored in relation to a delay in providing him with a witness statement in advance of the investigation. He was also aggrieved that no CC TV footage of the incident was made available to him.
The claimant was given a final written warning on August 24, 2016 in breach of the company’s mobile phone policy .He stated that he had not seen this policy up to the day of hearing .
The claimant appealed the decision on the same day and attended an Appeals Hearing on September 20; 2016.The sanction was up held by the company and referred by the Union to the WRC on 26 October, 2016.
The Union submitted that the complainant had been denied supporting documentation regarding the allegations in a timely manner .The Union, on behalf of the complainant took issue that the witness statement of Mr D was submitted and relied on by the respondent outside he oral hearing of Investigation and relied on Gearon V Dunnes Stores UD 367/1988 on the EATs analysis of the right to defend oneself and have arguments and submissions listened to.
The Union submitted that the claimant was “effectively found guilty of breaching a policy which he was never alleged to have breached”. The complainant stated that he had been very stressed by the application of the disciplinary sanction. They sought that the warning be expunged from the claimants file.
Summary of Respondent’s Case:
The respondent submitted that it was fair and reasonable to issue the claimant with the written warning due to the serious breach of company policy.
The claimant had worked for the respondent since 2009 on a 25 to 30 hour week .The claimants line manager ,Mr D, had observed him driving through the store car park on his mobile phone during the business day .Mr D made a statement on what he observed and heard . It is company policy that in the event of receiving a phone call while driving, the employee is expected to pull over and remove the keys from the car before answering the call.
The company held an investigation meeting, where the claimant was represented. He apologised for using the phone and said that it would not happen again .Ms A inadvertently did not give the claimant a copy of the witness statement and presented it with the notes of the investigation the next day .The matter was moved to a Disciplinary hearing on 10 July, which had to be rescheduled to July 21.The claimant confirmed that” he would not do it again “in relation to mobile phone use.
The company reviewed all the evidence before issuing the claimant with a Final Written warning as this offence constituted serious misconduct. This occurred on August 24, 2016.
An appeal hearing took place on September 20, 2016 and was chaired by Mr SM, Store manager of a neighbouring store .The claimant was represented .The company referred to the delay in issuing the initial statement of Mr D. They attributed this to Ms a not being sure whether she should give it to the claimant. They explained that this was remedied the next day .Mr DS interviewed Mr D again .He upheld the sanction, citing:
“There was no CC TV footage of the Incident .Mr DS was satisfied that the incident happened and the complainant had apologised to Mr D.
The Witness statement was handed to the claimant prior to the investigation outcome.
Driving while using a mobile phone is a breach of “Company Mobile phone policy for company drivers.”
The respondent clarified that the serious breach was incorporated in a number of areas within the Company’s policies.
1 Health and Safety Policy
2 Claimants written Terms of Employment (serious misconduct)
3 The complainant received training on safe driving and agreed to adhere to procedures surrounding the taking of work related phone calls while driving.
The respondent also referred to the Road Traffic Act, 2006 which prohibits a “person driving a mechanically propelled vehicle in a public place holding a mobile phone “
The respondent submitted that the claimant was fully aware that the sanction for using a mobile phone while driving is a final written warning. The respondent also submitted that final written warnings had been issued to other workers who had been found with similar breaches.
The respondent requested that the Adjudicator should not uphold the claim. Subsequent to the hearing, the respondent submitted a copy of “Excellent Delivery” Training programme completed by the complainant .This supplemented a further record of training and was shared with the claimant’s representative.
Mobile Phones
You are given a mobile phone as part of your van kit .This should only ever be used in the van if you are safely parked with the keys out of he ignition .It is against the respondent policy to use hands free devices in our vans .
Findings and Conclusions:
I have been asked to investigate this dispute and must make a recommendation to the parties setting forth my opinion on the merits of the dispute. The question of mobile phone usage while driving is very topical .However, I believe it is important to emphasise the separation of powers in the management of the issue. The Garda Siochana treat it as a strict liability matter punishable by points and fixed notice fines .This is a separate jurisdiction to that of an employer :employee relationship and must be distinguished from the outset . The matter continues grave but requires a separate management approach. I found the respondent team present on the day of the hearing to be united in a heartfelt and genuine concern that driving while in possession of a mobile phone to a be hazardous practice . I must, however, consider the facts of this particular case. It is of note that both parties accepted that the claimant was using his personal mobile and not the company phone. It was also accepted that he was on work time and not on break. I was surprised to learn that an incident /near miss form had not been logged to reflect the gravity of the incident from the respondent perspective. I found the company policy relied on by the respondent to be lacking in the spirit and intent attributed to it. It was not authoritative or reflective of a “zero tolerance “culture reflected by the respondent. “We do not expect company drivers to use the telephone while driving. …. The driver is the only person who can make the judgement as to whether they are driving with due care and attention” February 2012. The Personal Mobile Phone policy signed by the claimant referred to guidelines for use. I reviewed the notes maintained from the outset of the incident. In some cases, the hand written notes were difficult to decipher. I was struck by the consistent approach of the complainant where he appears to have acknowledged that he was on the phone and apologised throughout. I was surprised to find that the Disciplinary hearing resulted in a finding of “serious misconduct “, yet I could not establish just where the claimant had been notified of this charge in advance of the hearing. Furthermore , I could not establish a linkage between driving with a mobile phone and “ serious misconduct “.In short I could not establish a clear delineation outside the RSA Guide ,which confirmed that driving with a mobile phone would lead to a charge of gross misconduct at the respondent employment . It is frequently the case that “trends in behaviour “can suffer a time lag before being encapsulated in corresponding policies and procedures. I believe this is just such an instance. I found an observation recorded in the notes of the Appeal meeting on 20 September, which indicated that the Law supersedes any policy. This was a very elaborate value judgement, given that the respondent is not a custodian of the law. I found that it distorted the facts of the case. The claimant set a lot of emphasis on the fact that the van was approaching stationary status. I found this to be immaterial .It was accepted by all parties that the claimant used a phone while driving, exhibited remorse for doing so and agreed that he would not do it again. I found that there was insufficient clarity in the respondent policies linking a natural fit for the mobile phone matter, the sanction of serious misconduct and thus a final written warning. I found that the respondent had entered the formal arena of investigation and disciplinary procedures without recourse to informal counselling/ risk assessment or a simple engagement on the perils of the practice of driving with a mobile phone. I found that the respondent subscribed to the view that all incidents involving a mobile phone while driving warranted a uniform strict liability outcome, without exception. The difficulty with this approach is that it may lead to “pre determination “in disciplinary matters which conflicts with fair procedures and natural justice and does not permit a window for Individual mitigation. I believe that it is important that the power to sanction employees should be exercised in a measured manner and a “one size fits all “approach in terms of measurement of sanctions should be avoided. I found that, given his honest admittance and commitment not to do it again. The complainant was subjected to an excessive sanction in this case. I placed some emphasis on the procedural gaps around the delay in furnishing the witness statement, but I accept that there was an opportunity afforded to make further submissions once it was received. I was struck by the enduring unease expressed by the complainant and noted the complainants submission that a disciplinary sanction was meant to reflect correction rather than a punitive approach. I have found that the sanction was disproportionate in this instance and should be reduced.
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Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the parties engage on a harmonisation of the strata of documents referring to mobile phone use at work into a user friendly policy. I recommend that the claimant be released from the Final written warning and notified of same within 4 weeks of this recommendation .Instead, I recommend that he accepts a three month verbal warning dated from August 24, 2016.
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Dated: 11/05/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Disciplinary Sanction Mobile Phone usage at work |