ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference:  ADJ-00020773

Parties:

Complaint(s):

Date of Adjudication Hearing:  10/06/2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and 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 1993as 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.

The union submitted on the claimant's behalf that an incident occurred on the 4th 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.

The claimant’s line manager nominated himself as the designated “Buddy” for lone working duties in line with the IFI’s Lone Working Protocol. At the start of the shift the claimant failed to contact his line Manager as requested and this resulted in a meeting, in order to request an explanation for this, which took place on the 7th August 2017

The union submitted that the claimant is being singled and punished for something where he did nothing wrong. The claimant was being used by the respondent as a pawn in order to bring in the TMS by stealth. At no stage did the claimant ever refuse to follow any lawful instructions

The sanction was too severe and was completely disproportionate to any offense caused considering the claimant's good record since 1993 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 The claimant is seeking that warning should be rescinded in its entirety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—

(a)          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 there are other matters such as a management system (TMS) was under discussion between the union and the respondent which 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

Recommendation

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 he will carry out all instructions under protest, if necessary, going forward that 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.

 Dated:   29^th July 2019

Workplace Relations Commission Adjudication Officer:  Jim O'Connell