Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00016884-001

17/01/2018

The Worker is employed as a Driver since 1998. He is paid €4,564.99 per month. He is seeking the removal of a written warning from his personnel file.

On 25th May 2017 the Worker returned to work from seven weeks of sick leave. On 4th July 2017 he was advised that he was to be suspended on foot of a number of allegations. On 7th and 11th July 2017 he received confirmation of the allegations in writing. He was advised that an investigation would ensue. The matter was escalated to a disciplinary investigation on 1st September 2017. A number of the allegations were dealt with at this meeting, particularly those relating to fraud. The outcome was that he was issued with a final written warning, with effect from 1st September 2017, on the grounds of “misconduct” and “wilful refusal to carry out a reasonable instruction and performed an unsafe manoeuvre, by entering a bus lane which is clearly marked”. The period of the warning was 12 months. He appealed the sanction and it was downgraded to a written warning for the same 12 months period. Any reference to him having performed “an unsafe manoeuvre” was removed from the warning.

Prior to commencing sick leave, he was issued with the “Driver Controlled Procedure. At 10.2 in relation Dublin Airport it stated that “parking space in the fuel farm has been reduced due to construction on site, and CLH A1 will only allow two trucks to be on hold waiting to access off-loading bays. He complied with that procedure. The delivery parking arrangements at the airport had been altered during his sick leave. The amendments were advised in a follow up procedure dated July 2017. He did not receive that update until September 2017. On each of the dates that he was accused of his “wilful refusal to carry out a reasonable instruction” 26th May, 2nd, 9th, 15th June 2017he was required to complete a number of forms and these forms were counter signed by a supervisor or colleague and are verification that he had been debriefed by appropriate management on these dates. Despite the fact that he had reported that he was unable to deliver fuel to the Airport his colleagues never raised a query. He made it known to management that he had to abort his first run on all these dates. It was seven weeks later that management raised the issue. It is clear that he had committed no sanctionable breach.

The procedures applied to the investigation and disciplinary hearings lacked fair procedure and were not compliant with SI 146/82000. His direct manager had a direct role in these issues and yet was appointed to investigate the matters. He requested to be allowed to cross examine his manager and those that had signed the paperwork but he was refused. This is in breach of his constitutional rights. He cited the Haughey case [1971] IR 217 and Lyons v Longford Westmeath ETB in support.

He is seeking that this warning is expunged from his personnel file.

On 4th July 2017 the Worker was suspended from work on full pay pending the investigation into several allegations of false declarations and failure to follow reasonable instructions, driving a company vehicle on an unauthorised route and driving a company vehicle without due care and attention. The investigation was conducted by the Driver and Fleet Performance Manger. He held several meetings and examined the evidence before upholding the seven allegations made against him. He was then invited to a disciplinary hearing. This was confirmed in writing, the outcome of the investigation, purpose of the disciplinary hearing, possible outcome of the disciplinary hearing, right of representation, all evidence gathered to date, allegations made against him and who would be the decision makers. This hearing took place on 1st September 2017 and he was represented by his union official. The General Manger conducted the hearing. He was issued with a Final Written Warning “wilful refusal to carry out a reasonable instruction and performed an unsafe manoeuvre, by entering a bus lane”. The warning was to last 12 months. He appealed the sanction and the hearing was conducted by the Operations Manager. He was represented by his union official. The grounds of appeal were procedural rather than substantial. The Worker’s explanation was accepted regarding the allegations of false declarations. However, the Worker had confirmed that he had not attempted a delivery when directly instructed to do so and so confirmed that he had wilfully refused to carry out a reasonable instruction. The outcome was that the sanction was downgraded to a written warning for the same period to expire on 31st August 2018.

It is the Employer’s position that he has appealed his written warning solely on the grounds of proportionality. The sanction was issued in respect of his failure to follow a reasonable instruction. It is common case that on 15th June 2017 he was instructed to make a delivery to the fuel farm at the Airport. He approached the fuel farm and left without attempting the delivery. He confirmed during the investigation that he had not attempted the delivery. He was aware of the correct procedure for attempting delivery. He failed to follow a reasonable instruction and where an employee does this then a written warning is reasonable. The Company carried out all aspects of the investigations and appeal in line with the company’s disciplinary procedures. The written warning sanction should be upheld.

I note that by the time of writing this recommendation the written warning had expire on 31st August 2018.

I find that the matter that has given rise to this warning is the attempted or otherwise delivery of fuel.

I find that there was not sufficient certainty among the parties to definitively state which position is correct.

In the light of the uncertainty regarding the delivery of fuel at the Airport I recommend that the written warning, albeit expired, should be expunged from the Worker’s personnel file.

I recommend that the Employer should re-examine the current circumstances prevailing at the fuel farm in the Airport and determine exactly what is achievable or not. This should include ascertaining whether or not it is possible to see from the road whether there is queueing space in the delivery area.

I recommend that the Employer clearly sets out their current operating policy, procedure and instructions on the making of those deliveries in the light of that re-examination of the site.

I recommend that the Employer should then meet with the Worker and set out their operating policy and procedure regarding making deliveries at the fuel farm.

I recommend that the Worker strictly adheres to these instructions in a cooperative manner.

I recommend that if the Worker should fail to adhere to these instructions then the full rigours of the disciplinary procedures should apply.

I recommend that the Worker examine his attitude towards his job and addresses his confrontational attitude towards his employer.

This company is in the customer services business. The commitment to customer service should be the main priority of all activities in the company.

This is to be implemented within six weeks of the date below.

Appeal of written warning