ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00018176
Complaint(s):
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-00023477-001 | 23/11/2018 |
Date of Adjudication Hearing: 06/02/2019
Workplace Relations Commission Adjudication Officer: Jim O'Connell
Procedure:
In accordance with r 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 commenced employment with the respondent in 199as a Fisheries Officer.
The claimant is being accused that he failed to follow a reasonable instruction and he was issued with of a final written warning for eighteen months. This warning was later reduced to 15 months on appeal.
The union submitted on the claimant's behalf that an incident occurred on the 18th August 2017 which the claimant totally refutes the allegation being made against him that he did not refuse to obey any reasonable request and any other assertion is false and misleading.
It was submitted that the investigation carried out was fundamentally flawed as the investigator was biased and in favour of the respondent and therefore the process was not independent or impartial.
The sanction was too severe and was completely disproportionate to any offense caused considering the claimant's good record over the last twenty-three years without any warning verbal or written whatsoever.
The claimant is seeking that warning should be rescinded in its entirety
It was submitted on behalf of the respondent that their report for 2018 that 43 incidents of hostility and aggression reported across operations .
It was submitted that in accordance with the Health, Safety & Welfare Act 2005 to ensure safe working practice under legislation for his own health and safety and that of his team. The respondents Inspector issued an instruction to fishery officers they were to contact him as the designated “buddy” at the start and end of their shift.
It was submitted that under the provisions of the lone Working section of the Safety Statement that this instruction to be considered reasonable and in compliance with the respondent's duty of care to employees. The respondent submitted that in the circumstances of this case the warning was fair and appropriate.
Findings
Both parties made extensive written and verbal submissions at the hearing.
I find that the claimant has a very good work record, and this has been acknowledged by the respondent.
I find that the dispute has been referred under the Industrial Relations Act nevertheless I find since it was mentioned by both parties a reference to the Health, Safety & Welfare Act 2005 which states;
section 13.— (1) An employee shall, while at work—
- comply with the relevant statutory provisions, as appropriate, and take reasonable care to protect his or her safety, health and welfare and the safety, health, and welfare of any other person who may be affected by the employee's acts or omissions at work,
I find that the instruction to the employee to contact his line manager at the start and finish of his shift as reasonable in the work environment the parties operate in.
I find that other matters such as a management system (TMS) which was under discussion between the union and the respondent may have played a part in the claimant’s approach.
I find that an agreement is in place between the respondent and the union that if an employee is aggrieved by an instruction he would work “under protest”.
I find that taking all relevant matters into consideration I am making the following;
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
On the clear understanding that the claimant gives an undertaking that in future he will carry out all instructions under protest, if necessary, that the final written warning is deemed to have expired and expunged from his file from the date of this recommendation.
However, if the claimant fails to give such an undertaking the warning stands.
Date 05/04/2019