Complainant

Respondent

Anonymised Parties

A Plant Operator

A Materials Company

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-00011699-001

01/06/2017

The Complainant was issued a Final Written Warning arising out of an accident and was taken off shift duty and was seeking that the disciplinary actions be rescinded in full. Following the Hearing the parties requested time to engage in talks regarding a number of issues. In the last week SIPTU have requested a Recommendation on the claim.

The Complainant had an unblemished record of 20 years’ service.

In October 2016 he was involved in a workplace accident when alighting from an articulated dumper truck and fractured his wrist. He was deemed unfit for work as a result until December 2016.

He was invited to a meeting prior to returning to work to discuss the accident, which he attended with his Union Representative as advised and was presented with an accident investigation report and he was suspended with immediate effect. He was then told to attend a disciplinary meeting to offer an explanation for his recent accident and his previous accident record.

No clarification was provided as to the nature of the alleged offences and the constitution of the disciplinary panel was contested due to their prior involvement in the suspension. A new panel was then re-constituted after a time. The purpose of the disciplinary meeting was then advised as to discuss the Complainants ability to attend work and carry out his duties in a safe manner. At no time in the process were the disciplinary charges advised to the Complainant. Following the meeting the Respondent placed the Complainant on a final written warning, took him off shift and transferred him to another Department.

In accordance with S1 146 of 2000 the Respondent were either unwilling or unable to specify the specific basis for the disciplinary process. The Complainant was never advised, until after the Hearing, that he was being dealt with under the “Exceptional Disciplinary Acton” process which was reserved for serious misconduct charges.

The process was flawed from start to finish and we request a recommendation that the Disciplinary sanctions be rescinded in full.

The Respondent operates to an extremely high level of safety on the site and due to the nature of the duties requires its staff to be extremely safety conscious.

The Complainant was issued with his disciplinary actions because of his safety record over two years. In 2014 he was absent for 31 weeks and in 2016 he was absent for 16 weeks due to incidents on site.

The Respondent carried out a fair and comprehensive investigation and disciplinary process. The right to appeal was availed of and the facts warranted a final written warning as a measure to reduce the Complainants health and safety incidents.

The Complainant fell off a step on a truck and had not completed his pre -start up safety check in advance of alighting the truck on the day in question as required and understood by the Complainant.

A full investigation was completed by a trained safety Investigator.

The Accident Investigation Report was shared with the Complainant and he raised no issues with it and accepted that he had not completed the pre start safety check list on the truck before using it. He also failed to maintain three points of contact with the truck when descending from the vehicle and failed to report any issue to Maintenance for repair. He was trained in all these procedures.

The Respondent has a comprehensive approach to safety and safety campaigns and an exemplary safety record in recent years.

The Respondent gave a fair hearing to all the issues raised by the Complainant and his Representative but concluded that the Complainants safety record warranted a Final Written Warning and removal form 5 cycle shift to day work where he would be more involved with more predictable and repetitive work and less use of a mobile plant.

The Complainant was maintained on shift pay for pension purpose, got compensation for being taken off shift in line with the Company/Union policy and was given an assurance the situation would be reviewed in September 2018.

The Respondent maintains that its actions were both fair, reasonable and appropriate in all the circumstances and was based on an objective investigation and impartial disciplinary process.

There are a number of issues core to this case. Firstly, was the Complainant advised that he was under investigation for his overall safety record over a period of time prior to being suspended with immediate effect. While the invitation letter from the Respondent dated December 7th 2016 did advise the Complainant that he should have his Union Representative present it gave no advance notice of the purpose of the meeting or the possible severity of the sanction arising from the meeting. Secondly, while it was admitted that the Complainant did not do the pre-start safety check on the truck the Complainant stated these forms were not available in the office on the day in question. Thirdly it was accepted, in principle, by the Respondent that the Complainant did not deliberately go out to injure himself while alighting from the truck and as result fracture his wrist. Fourthly, the step of the truck which caused the accident was damaged and may have been damaged either on arrival on site (the truck was supplied by a third party) or was damaged prior to the date of the incident and either not reported by other staff or if reported, not acted upon by the Respondent to withdraw the truck and repair it (photo evidence of the damaged step was provided).   The lack of information/analysis from the Respondent of the pre start forms completed prior to the date of the accident was not helpful to assess this issue.

The Respondent made a great case that they were an extremely safety conscious company and were disciplining the Complainant as a result of his safety record over a period of time. However when questioned, intensely, at the Hearing they did not know off hand when the damaged truck was brought on site, no check of the truck took place on delivery to the site, did not know who had supplied the truck (although this was confirmed later in the Hearing) and if there had been any pre start forms completed, prior to the day of the accident,   which identified the step as faulty. This does not imply to me that a rigorous root cause safety examination of the accident had taken place by the Respondent but instead concentrated on the Complainants involvement and actions. So it is not clear if the truck had been used by the Complainant or other staff, in the manner which the Complainant found it on the day of the accident, or whether it had been reported as faulty prior to the day of the accident.

Another key issue is that is does not appear that the Complainant was ever exactly told what were the disciplinary charges against him thus giving him to opportunity to prepare a defence in advance of the disciplinary meeting and that the procedure under which the disciplinary process was being instigated, was of the most serious nature of gross misconduct. It is also unusual that the accident Investigation, rather than concentrate on the accident, went way beyond to examine the Complainants past accident record.   This investigation brief does not appear to have been shared with the Complainant. It was also very strange, to say the least, that the invitation letter to an Appeal Hearing, dated 28th March 2017, from the Respondents Head of HR referred to an appeal of his “dismissal” and not the Final Written Warning.

Finally, while it would appear that the Complainant had two prior accidents at work he was not disciplined for any of these, therefore one can assume strictly from an Industrial Relations perspective, they did not warrant any disciplinary action. Therefore while the Respondent maintained that the disciplinary action at the centre of this claim was due to the Complainants overall safety record over two years the key driver to initiate the disciplinary action was the accident on the dumper truck. The Respondent confirmed at the Hearing that had that accident not happened that the Complainant would not have been issued with disciplinary sanctions so therefore the core issue driving the disciplinary action was the truck accident. For the reasons set out above, particularly that the availability of the pre start form was in dispute, that the Respondent had completed no analysis whatsoever of the prior days/weeks pre start forms for the truck, that no check was completed by the Respondent on the truck when it was delivered to the plant, that the Complainant was never properly informed of the disciplinary case he had to answer, the Complainants prior excellent record of no disciplinary action over 20 years and the acceptance that the accident was a genuine accident the sanction of a Final Written Warning seems extreme in all the circumstances. While the warning has expired at this stage, for reasons I will not go onto here in the Recommendation, the Parties require a Recommendation on this issue. The actions of the Respondent in taking the Complainant off shift duty seem well merited and intended and I see no reason to propose a change to that action. However, having taken all the detailed verbal and written submissions into account I believe the sanction of a Final Written Warning was too extreme in regard to all the circumstances and a Written Warning, with an advisory of further more serious sanction if the accident record continued, would have been more appropriate. I recommend that the Complainants personnel file be amended to reflect this Recommendation that the Warning be amended to a Written Warning.

Appeal of Final Written Warning