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-00021005-001

03/08/2018

The complainant was employed as a traffic warden by a contractor to a local authority. He worked a forty hour week for which his net pay was €865 per fortnight. He has been engaged in this work since 1985.

The complainant was the subject of disciplinary proceedings arising from a number of complaints that had been made against him.

In general, they involved allegations that he had been rude to members of the public. Some of these were essentially duplicate complaints in that the first instance complainants had made further complaints to the local authority or an elected councillor, who then complained based on the same facts.

In respect of the first incident on January 9th 2018 the parking ticket had not been issued by the complainant at all. The complaint alleged that the complainant had spoken to a couple in an abusive manner.

In relation to the second he acted properly as the parking ticket had expired by some thirty-six minutes.

The third complaint was made by a local councillor and the complainant was not named in it, and it made a generalised allegation about unfair treatment towards ‘business members’ in the area in which the complainant operated. .

The fourth complaint arose as a result of a car having been parked on a footpath and a complaint from a pram user about access. (A further complaint from a senior staff member of the local authority also arose from this incident.)

The investigation was not thorough and was biased.

The subsequent disciplinary process was also flawed and the decision maker showed bias. She held meetings with the local authority at which the issues were discussed, but the detail of these meetings was not ventilated at the hearing or reflected in the minutes.

The respondent did receive a number of complaints about the complainant.

On January 10th 2018 a local business owner complained that the complainant had been ‘incredibly rude’ and identified him by his badge number.

On January 18th a second complaint was received from two pensioners who said the complainant shouted at them as they were unloading firewood.

This was followed by the complaint from the councillor and finally two from senior council officials on January 18th and 19th, the latter alleging that he had been ‘hiding behind walls’ and was ‘selective’ about where he enforced the parking regulations.

The respondent carried out an investigation for the duration of which he was suspended. The complainant denied the allegations but the issues were referred to the disciplinary process, and a hearing eventually took place (delayed by the complainant ‘s illness) on March 8th.

The outcome of this was sent to the complainant on March 13th; it was a second written warning. The complainant was also to be transferred, although this was not part of the outcome of the disciplinary process.

He appealed and this was heard on March 27th.

The appeal outcome was published on April 6th and upheld the original sanction.

The complainant then initiated a formal grievance regarding the unfair procedures in the process. This was referred to the conciliation service of the WRC but the complainant declined to participate. The respondent advised that an appeal against the decision properly lay to the adjudication service, and this is what happened.

The respondent concluded in the course of the process that, on the balance of probability it was more likely than not that the complainant had acted ‘inappropriately’ to members of the public, with the common theme that he had been ‘rude’. This is despite the complainant’s denial that he had ever had any issue with a member of the public.

The respondent submits that the jurisdiction of the WRC in cases such as this is constrained and that it does not extend to re-investigation of the substantive matter or the substitution of its views for that of the employer.

The process was fair and the complainant’s rights were fully respected at all stages and accordingly submits that the disciplinary sanction should stand.

The complainant’s role is a thankless one.

The driver who finds an available parking space is unlikely to be grateful for the fact that it may be empty because the complainant or one of his colleagues has overseen the correct enforcement of the parking regulations.

Conversely, the complainant or one of his colleagues is likely to be held personally responsible for those regulations and byelaws by the aggrieved, non-compliant motorist.

In fairness, the respondent made it clear that it fully understands this and that this provides context for any response to complaints from the public or others and any subsequent actions it takes.

In this case the allegations against the complainant were thin enough, and there was an element of ‘bulking up’ in the additional contributions of the council staff and the councillor, none of whom were witnesses to any of the events complained of.

So, in realty there were only two complaints from car users; related to incidents on those of January 9th (received on 18th) and 10th .

In relation to the first of these the complainant says he had not issued the ticket at all but was later subjected to a verbal attack by a member of the public who had received a ticket.

In the second incident the driver had been properly ticketed. In the course of the exchange, the complainant alleges that the driver apologised to him but said to him; ‘I hope you lose your job’.

These are the substantive complaints. A complaint from a councillor on behalf of aggrieved constituents is, to put it no more strongly, something that should be treated with great caution. It is not known, for example whether the councillor took any steps to independently verify the allegations, but it seems unlikely.

It also seems probable that the same could be said of the council officials who had no independent knowledge of the matters which were the subject of their communications.

The first of these letters from the Senior Staff Officer contains the following;

‘ The Parking Enforcement contract has now caught the attention of [the named Local Authority] county councillors mainly due to the number of complaints they are receiving…questions regarding the current parking enforcement policy were raised by councillors and concerns regarding the alleged conduct of a particular traffic warden (not identified by name) were aired’.

It continued;

‘ The continued complaints regarding the conduct and behaviour of the particular warden is, in the view of the Parking Section damaging to the [council’s] brand and indeed [its] reputation’.

The volume of complaints received, or questions raised by councillors is not, in itself an indication of any wrongdoing. Earlier in the letter the writer could go no further than weakly assert that the number of complaints ‘seems to have escalated’. If any evidence to support this speculation existed it should have been brought to the respondent’s attention

On the other hand it is hard not to feel some sympathy for the respondent faced with this barely disguised, menacing tone, based, as it was on the flimsiest of evidence.

It meant simply that the complainant in this case found himself responding to, on the one hand a number of specific complaints from drivers but also to a hue and cry from local politicians, in respect of an apparent increase of complaints, in which he has not always been identified, and of which there are only two detailed.

This does not add up to what the respondent referred to in its submission as ‘numerous complaints’.

These deficits were identified in letter sent on the complainant’s behalf by the CIS on June 11th.

The reference to the council’s brand and reputation is little more than self-serving waffle and is calculated to add to the quite unfair pressure on the respondent by the writer of the letter.

While it did request an investigation the recipient of this communication, the respondent which is contracted to the council, could hardly fail to read the underlying message it contained. The request for the matter to be investigated might have been less disingenuous if it had not been so heavily prejudiced by the contents of the letter above.

The letter from the other senior manager related to one of the complaints already referred to. It adds nothing to the case against the complainant. It does contain some additional evidence, including of abuse of the complainant.

The complainant (in the letter of June 11th) expressed his concern that the involvement of the Council in the matter would result in him being denied fair procedure and that the case should have been heard by an external adjudicator (or ‘mediator’ as it is erroneously referred to).

This is a concern I considered seriously, and especially in light of the reference in the decision of the disciplinary decision maker that the council had ‘requested that the complainant ‘be removed from working as a traffic warden due to the volume of complaints received’.

It is not clear where this request was made but if the ‘volume of complaints’ made are those itemised above that would be a poor enough basis to do so.

I do not say that it is not valid for the respondent to take account of the council’s position; it would be very foolish not to; but any concerns expressed by the council must be subjected to scrutiny to establish whether they have a basis in fact; representations made by councillors on behalf of aggrieved constituents, and by council officials on behalf of aggrieved councillors fall into a category that should be subjected to particular, forensic scrutiny.

There are some very serious grounds for concern where a major client of the respondent would seeks to take advantage of its commercial power with the respondent to pressurise it to impose adverse consequences on one of its employees. The complainant expressed concern about whether, in the face of such pressure the process could be sufficiently uncontaminated to give him a fair hearing.

To the credit of the respondent, it did at least set in motion the correct process.

It provided the complainant with the allegations for the purposes of the investigation and offered him representation throughout the process.

It is not clear on what grounds the complainant criticised the investigation process; he was supplied with the information that was to hand. It is not a criticism of an investigation process to say that the allegations ‘did not contain sufficient detail to allow [the complainant] to understand the factual basis of the complaints; that is the purpose of the investigation, to ascertain those facts.

There must be some concern that the brief of the investigation identified two issues of concern, at least one of which is more properly a matter which should follow the investigation of the facts and the formulation of ‘charges’ for the disciplinary step; ‘Alleged gross breach of trust and confidence’.

The purpose of an investigation (of this sort) is fact-finding. It should not be to determine ‘gross breach of trust and confidence’ or inappropriate conduct (leaving aside for now the somewhat excessive elevation of the issue to one of ‘gross breach’).

That is a matter for the next stage where such ‘charges’ can be preferred on the basis of the facts that have been established by the investigation.

Extraordinarily, the investigator did not reach any findings on the facts of the matter, but felt it nonetheless proper to recommend disciplinary proceedings. (Interestingly the contributions of the council officials survived this and the later steps in the process, despite the obvious shortcomings referred to above).

The respondent’s confusion about the clear water needed between investigation and disciplinary hearing is further evidenced in the outcome letter of March 13th where the decision maker describes the purpose of the disciplinary meeting as being;

‘to further discuss the allegations put to you at a previous investigation meeting and provide you with an opportunity to set out anything further you wished to be taken into consideration before any findings were made as to the outcomes of this disciplinary process.’

This conflation of the two stages is entirely wrong. The disciplinary hearing is a distinct separate process to the investigation step and the above displays worrying confusion on the part of the respondent as to the proper conduct of the process.

There were some criticisms also of the record of the disciplinary hearing but these hardly go to the heart of the process or undermine its fairness.

It is also clear that the decision maker took account of previous complaints against the complainant.

An appeal took place.

Again, I have concerns about the weight attached to the complaints from the councillor and council officials which are not complaints against the complainant in any meaningful sense; they are expressions of concern about complaints already made.

As noted above the respondent has every right to be concerned about these, but they cannot be accepted uncritically as representing a case against the complainant if they add nothing further to the complaints already made. The sanction against the complainant was a second level warning which is to run for twelve months from March 6th 2018.

The respondent has stated at the hearing that a decision to transfer the complainant is not part of the disciplinary sanction and is not reviewable but this is not entirely credible.

Both the original and the appeal decision maker make reference to it in the respective outcome letters; the former says ‘the company cannot ignore our client’s request on foot of the complaints received. To protect our relationship with [the council] I must adhere to their request’, and the latter said that it was ‘As a result of the client request you have been relocated’ to a different area.

The transfer decision while it may be part of a general right on the part of the respondent in the allocation of its resources is quite clearly linked to the complaints against the complainant, and the outcome.

The respondent referred to ADJ 1449 ‘A Worker v National Gallery of Ireland’ in which a distinction was made between a sanction and a transfer for operational reasons.

It would be stretching things to describe this transfer as being only for ‘operational reasons’; it forms an inextricable part of the disciplinary process and its outcome as is very clear from the documents submitted at the hearing. It followed a request from the client for the complainant to be moved based on the same grounds as formed the disciplinary charges as against him. In that context ‘operational reasons’ is a mere euphemism for a disciplinary sanction.

Nonetheless, and finally there remains the question as to whether the respondent acted reasonably in concluding that a sanction of a second warning was appropriate.

A critical factor was the failure to deal with the ‘one step removed’ complaints from the councillor and the council officials. These were essentially hearsay complaints and should have been eliminated from the process. They are of course very relevant to the respondent and its contract with the council and provide context for evaluating the seriousness of the impact of the complainant‘s actions but great care is needed in relation to the role they play in the proceedings against the complainant.

For example, if the respondent had concluded that there was no merit in the complaints by drivers or the public against the complainant then the council’s concerns would wither away.

I have recounted above these aspects of the case which give rise to concern.

Are they sufficient to disturb the respondent’s decision to impose the sanction it did; a second written wairning?

I take into account that the sanction in this case was a limited one. Had the complainant been dismissed some of the flaws described above would have had considerably more relevance.

Both decision makers in the case, at first instance and on appeal wrote detailed reasoned decisions.

The considerations came down to two; the ‘volume’ of complaints against the complainant and the relationship with the client local authority.

At first instance the decision maker refers to ‘four complaints’ in January and February 2018 and also said that he ‘was aware of a number of complaints received and which you may have been questioned on in the past’.

Strictly speaking there were only two, possibly three complaints, and then two further complaints about those complaints as has been discussed above. Two is not much of a ‘volume’!

The decision on appeal runs to almost five pages. It contains the following;

‘There is a pattern to the complaints where the complainants have referred to an unpleasant experience when interacting with you relating to your tone and manner and in the letter of 9th January goes so far as to say abusive…….It is this pattern referring to a negative manner that provides me with a reasonable probability that inappropriate interactions have occurred with these complainants’.

Indeed, had the respondent confined itself to this simple assessment of the situation from the outset it would have been a lot easier for all concerned; the reference to gross breach of trust and confidence is totally disproportionate.

In explaining her reason for upholding the second stage warning she states;

‘As per the disciplinary policy and procedure a stage 1 warning states ‘If the offence is a serious one, or if a further offence or no improvement occurs….a second written warning will be given to the employee’

By receiving four complaints in the period of one month and then a letter of complaint from our client believe this offence is a serious one and a stage two warning is appropriate in this instance

In my view, the imposition of a second written warning was harsh on the basis of the criterion stated above but I defer to the respondent in its assessment of that and I find that despite all the confusing and unhelpful noise, it had sufficient grounds to justify a warning being issued to the complainant.

The inadequacies in the respondent’s handling of it does not provide a basis for setting that aside, although I recommend shortening the life of the warning.

Regarding the transfer, the main issue that arose at the hearing concerned a historic difficulty which might re-present itself if the complainant accepted the reassignment.

In my view, given what has happened this is the lesser of the difficulties facing the complainant and much more easily resolved using an appropriate form of facilitation.

More importantly, the proposed transfer gives the complainant an opportunity to learn from this experience and for a fresh start which he should embrace.

I recommend that the warning should expire on December 1st 2018.

I also recommend that the complainant should accept the transfer to the new location and the respondent should construct whatever support mechanisms may be required to address concerns by the complainant in respect of possible issues arising on his return to work, as well as implementing whatever training it considers appropriate.

I recommend the respondent review its approach to handling complaints from clients about its employees, and ensure that clients are aware of its (the respondent’s) obligations to conduct independent, and fair processes in respect of possible disciplinary action against its employees.

Disciplinary proceedings.