Complainant

Respondent

Anonymised Parties

A Stores Operative

An Engineering Supply Centre

Representatives

Dave Curran, SIPTU

Graham Bailey, IBEC

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-00022821-001

23/10/2018

The respondent company distributes powder coatings for engineering equipment and the respondent worked in the stores. His duties included moving materials using a fork-truck. Some of the materials are powdered metals comprised of tiny steel spheres contained in barrels of up to 460 kg. On August 9th 2018, as he was moving a barrel, it tipped over and the metal powder spilled onto the floor. This dispute is about a final written warning issued in response to how the complainant dealt with this spillage. His position is that the sanction of a final written warning was too severe.

Background to the Final Written Warning

The complainant has been employed by the respondent since March 1998. On August 9th 2018, he knocked over a barrel of powder coating as he was in the process of moving it with a fork-truck. With some of the contents of the barrel on the floor, the complainant said that he assessed the weight of the remaining contents of the barrel to see if he could lift it into an upright position, and to do this, he had to step on the spilled powder. He concluded that he couldn’t lift the barrel and he looked for assistance from a general operative, but he couldn’t find anyone nearby. He then found his supervisor, and they both cleaned up the spilled powder. The complainant filled in an incident report form about the spillage.

An investigation meeting took place on August 13th, chaired by the customer services and logistics manager. The complainant attended with his shop steward. The manager carrying out the investigation was not satisfied with the complainant’s explanation about why the barrel fell over and he arranged for a further meeting the next day, at which CCTV footage of the incident was examined.

Following a review of the notes of these two meetings, the production manager initiated a disciplinary investigation and two meetings took place on August 16th and 17th. The outcome, on August 20th, was a final written warning, for “flagrant disregard of safety and safety regulations.”

The Union’s Position

Representing the complainant, Mr Curran stated that the final written warning was disproportionate for the following reasons:

The warning is inconsistent with the more lenient treatment of employees involved in a far more serious incident in 2016. In that incident, three employees were issued with a verbal warning, two of which were over-tuned on appeal;

The company’s disciplinary procedure sets out four categories of misconduct that might warrant a disciplinary sanction, from A to D in order of seriousness. The incident on August 9th 2018 was considered in the category of group D, and the union contends that it should be more correctly categorised in group A or B;

During the investigation process, and in the letter to the complainant confirming the outcome of the investigation into the incident, the employer referred to a separate legal case taken against the company by another employee. The complainant had given evidence in this case. The union contends that it was inappropriate to refer to that issue;

The complainant accepted that he was at fault, but he does not accept the finding of “flagrant disregard of safety and safety regulations.”

Rationale for the Issuing of a Final Written Warning

The respondent’s position is that when he attempted to remedy the problem of the tipped-over barrel of powder coating, the complainant was not compliant with health and safety practices and that he put his health and the health and safety of his colleagues at risk. Mr Bailey said that the complainant was trained in health and safety procedures and had been involved as a witness in High Court proceedings involving another employee that involved health and safety. The company’s position is that the complainant is aware of what is required from him in respect of health and safety but that he had “willingly not complied” with these requirements.

The company’s submission sets out the reason for the issuing of the written warning:

The complainant accepted that in hindsight he could have acted differently and more in line with company policy and sought assistance;

There was a high volume of powder on the floor and the complainant was standing in the powder while attempting to lift the container;

The complainant was clearly not on a safe footing and placed himself in a harmful situation.

Following a meeting at which the complainant appealed against the final written warning, the chief executive officer concluded that the complainant was responsible for his actions, policies were in place advising the correct safe action to be taken and the complainant was fully aware of the policy and the danger of walking or standing on metal powder on the floor. The appeal hearing upheld the final written warning issued on August 20th.

The Company’s Position

In its submission at the hearing, the company argued that the complainant was an experienced operative with 20 years of service and he failed to follow the correct health and safety procedures. Referring to the Employment Appeals Tribunal case of Looney & Company v Looney, UD 843/1984 which sets out the responsibility of the Tribunal to consider how a reasonable employer might respond to a particular set of facts, Mr Bailey said that any reasonable manager would have issued a final written warning arising from the incident on August 20th 2018.

While the complainant said that he was well-intentioned in his response to the incident, the company’s position is that he acted in contravention of health and safety policies and in breach of chapter 2 of the Safety, Health and Welfare at Work Act 2005 which sets out the General Duties of Employees and Persons in Control of Places of Work.

Concluding the company’s position on this matter, Mr Bailey said that the final written warning followed from a procedurally fair investigation and that it was reasonable and proportional and in accordance with the company’s disciplinary procedure.

Breach of Safety Procedures on August 9th 2018

At the hearing on this matter, there was no dispute between the complainant and his employer with regard to the facts of the incident that occurred on August 9th 2018, and these facts were supported by CCTV footage and still photographs submitted in evidence. It is clear that there was a spillage of metal powder. The complainant dealt with the spillage by considering if he could lift and re-right the barrel. To do this, he had to step on the spilled material. When he determined that he couldn’t lift the barrel, he used the blades of the fork truck to lift it, using the side spurs or “arms” of the barrel to secure it in the blades. When he had the barrel upright, he alerted his supervisor and they cleaned up the spilled material.

From the employer’s perspective, the problem with the complainant’s response arises from the fact that he failed to follow the procedure for dealing with spillages.   The correct response is set out in a notice posted on the notice board headed “Notice – All Personnel” and underneath, “Spillages Notice.” This sets out the sequence of actions following a spillage:

Cordon off the area using appropriate warning signs;

Clean up the spillage on the spot;

Notify a manager or supervisor;

Fully clean the floor after the spillage has been removed;

NEVER WALK AWAY FROM A SPILLAGE – In bold capitals, as on the notice.

At the hearing, the complainant accepted that he was wrong to step on to the powder to attempt to lift the barrel. He said that he thought that he might be able to resolve the situation easily.   When he got the barrel upright with the use of the forks of the truck, he cleaned up some of the spillage and then he went to speak to his supervisor.

Was the Final Written Warning Reasonable and In Proportion to the Misconduct?

In contemplation of reaching a recommendation on this matter, I have taken account of the fact that the complainant worked for the respondent for 20 years without ever coming to their attention in relation to a disciplinary matter or a health and safety incident. Having listened to what he said at the hearing, it is clear to me that when he tried to get the barrel off the floor after he knocked it over with his fork truck, he should have reported the incident immediately, before he attempted to re-right the barrel himself. This is what an experienced person who is knowledgeable of the risks involved in working with this product would have done. The complainant is experienced and he is aware of the unique risks of working with metal powder coatings and he should have responded to the situation differently. In his defence, he said that he looked for assistance and there was no one around and didn’t want to leave the product on the floor.

The company’s disciplinary procedure is unique in some respects as it provides examples of conduct that will result in a verbal warning and those that will result in first, second and final written warnings, under the headings of Group A, B, C and D. Group D events attract a final written warning and under this heading is conduct described as “flagrant disregard for safety or safety regulations.” There is only one other reference to safety, under the Group A events which lists, “failure to comply with safety and security requirements, this includes wearing of PPE etc.”

The complainant was therefore issued with a final written warning because of a “flagrant disregard for safety or safety regulations.” As I understand it, “flagrant” describes an action that is open and obvious and which is done without concern for being found out.   I do not see how the complainant’s actions can be considered under this heading, as he tried to fix the problem before he sought assistance from his supervisor.

I accept that the complainant knew what to do when there was a spillage and that he failed to do the right thing. It is my view that it was reasonable for the respondent to impose a sanction, but I find that the imposition of a final written warning was too severe.   In the final written warning letter issued to the complainant on August 20th 2018, the production manager stated, “I accept your stated belief that you act with good intention…” It is difficult to reconcile this acceptance of the complainant’s good intention with a flagrant disregard for safety regulations.

It is important to recognise the objective of a disciplinary sanction. Over the years, aside from instances of gross misconduct, it has become established that warnings are progressive, starting often with the euphemistically named “counselling,” then moving to a to verbal warning and then generally three written warnings before dismissal is contemplated. For an employee with a perfect conduct record, some consideration must be given to the nature of the offence and the degree to which it can be deduced that the employee intended not to follow a procedure or to do something in contravention of a rule or procedure. In this case, the complainant accidently knocked over a barrel of powder coatings and he tried to lift the barrel to clear the floor instead of seeking assistance immediately. In so doing, he said that he was following the instructions in the safety notice which warned, “NEVER WALK AWAY FROM A SPILLAGE.”

It is my view that the issuing of a final written warning to the complainant in the circumstances set out in this case was too severe. As the disciplinary procedure only provides for the issuing of a warning about a safety-related matter under the heading of Group A and Group D, I recommend that the warning be reduced to a verbal written warning which is appropriate to a first disciplinary event under Group A.

Severity of sanction