Complainant

Respondent

Complainant

Respondent

Anonymised Parties

An operative

A retail business

Representatives

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-00023368-001

20/11/2018

The Complainant commenced employment on 14/01/2007.

He is currently employed as a Maintenance and Operations Crew Member.

This complaint was received by the Workplace Relations Commission on 20/11/2018.

Background.

The Complainant has been employed since 2007 as shop assistant by the Respondent in County Meath.

The Respondent took over the business and the Complainant transferred under TUPE in November 2017. At that point as per his contract of employment he worked 39 hours per week, €10.35 per hour rate of pay plus inter alia - access to Pension scheme, JLC Sick pay scheme and uniform provided at no cost to him.

In July 2018 he was promoted to Maintenance Team member salary €25.000 P.A. plus company car.

As Maintenance Team member the Complainant was an excellent worker, in deed in his 11 year’ employment, he had an excellent work record. He was attentive to his duties, flexible and accommodating to all requests for assistance from both work colleagues local and senior managers alike.

Maintenance Team Member.

When he was appointed Maintenance Team member, he understood, that he would be provided with the appropriate tools and PPE equipment, however only a high viz vest, and boots were provided. He made numerous requests to management and eventually he was provided with a drill. He was never provided with goggles.

On occasions the Complainant carried out maintenance work with tools he provided from his home.

Prior to the incident which led to this complaint the Complainant carried out a variety of maintenance work in various shop locations, for example:

1.       Fixing taps & Toilet seats.

2.       Fixing dispensers.

3.       Doors & Light fittings.

4.       Repairing and making bases for coal stands/bunkers.

5.       Sent to one location during windy weather to secure the fixture on the roof, this required him to use a drill to secure screws.

6.       Sent to secure fence around shop at building site.

Incident in Batterstown - 9th October 2018.

Prior to 9th October 2018 the Complainant was in the Respondent’s shop in YYYYYY when he was approached by a member of the Deli staff who told him of a problem they were having, trying to get cleaning detergents in the side of the cooker and they asked him to help. The Complainant advised that, in the first instance they should get the provider to rectify the problem. If the provider did not come out to fix the problem, he would do the work which he explained required cutting out a door in side of cooker to allow ease of access.

Some weeks later the Complainant was again in the shop and was told that no one had come to sort the problem, he agreed with staff that he would make this removable door.

On the evening of 9th October 2018, the Complainant arrived at the shop to do the work, there was no manager on duty to whom he could report. However, on the understanding that he had with the deli staff he proceeded to do the work. This work required the use of an angle grinder.

While he was carrying out the work, shop staff came to ask him about the work, and he explained what he was doing. The shop staff then carried on with their work and when the Complainant had finished the job, he left the shop.

On 18th October 2018 the Complainant was called to an investigation meeting on foot of a complaint /Incident form dated 10.10.18.

The Complainant who was not represented was given 10 minutes to review complaint /alleged evidence against him CCTV photo. This investigation was carried out by the Retail Manager, direct manager of the Complainant.

A letter dated 15th October 2018 set out 4 specific allegations against the Complainant and at the investigation meeting, he was asked approx. 29 questions, he had no representation he was told he could be accompanied by a work colleague. However, given that his work colleagues were responsible for him undertaking this work in first instance this was not a realistic option.

Investigation Findings.

The Fact-Finding Investigation Report was issued on 26/10/2018 by the Retail Manager it set out four specific allegations against the Complainant as follows:

7.       Undertook the altering of deli equipment using an angle grinder without direction or permission on 9th October2018 over the time period 18.00 to 20.30 in the operation.

8.       Breached Health Safety regulation 2016 & Welfare regulations specifically, Safety Health and Welfare at Work (general application) (amendment of 2016) Regulations 2016(si.no.36 of 2016).

9.       Breached Food safety legislation specifically, regulation (ec) NO. 852/2004 on the hygiene of food stuffs (si.369 of 2006).

10.   Failed to notify the fresh food manager or Service Station manager or Deli supervisor of the work undertaken for a detailed clean-up of the deli apartment.

The report was furnished to the Complainant and referred to HR Manager for review.

Disciplinary process:

The Complainant was called to Disciplinary meeting on 31st October 2018 at Head Office in Dublin . The purpose of this meeting was to consider the findings of the investigating report from the Retail Manager.

At this meeting where the Complainant was accompanied by Ms CR (his representative at the hearing in the WRC).

The Complainant again stated that he was asked to carry out his work by the Deli staff.

There was no manager on duty in the shop that evening.

Shop staff were aware he was carrying out the work.

He said the claim by deli staff (when asked by the Retail Manager about their involvement) that asking the Complainant to help with the problem of cleaning the cooker was a joke. This was not true the Deli staff had asked him, and it was no joke.

They had called on him when he was in the shop to look at the panel saying they could not get at the chemicals for proper cleaning of the cooker. He had told them to get in touch with the installers to sort it out. But when the deli staff approached him a second time telling him that the installer had not come to fix the problem, he carried out the work.

This review of the side panel had been on a snag list for outside contractors since 5th September 2018.

At the disciplinary given that this was a first such incident for the Complainant his representative requested that this matter be addressed under the informal section of the company procedures as this was a unique situation where the employee was under the belief that he was assisting and helping work colleagues to resolve a problem regarding inadequate cleaning of the cooker in deli section.

This employee who worked over and above the call of duty had an excellent work record and company policy specified that it was committed to treating all staff fairly and equitably and to helping employees perform effectively.

Concern was also expressed that- a leading question (26) was put by the investigating manager charging the Complainant of wilfully carrying out work on the cooker. This charge by the investigating manager was clearly unwarranted and prejudicial to the Complainant. The investigation manager also omitted to mention that there was no manager on site that evening to which the Complainant could report and that he had been asked by the deli staff to help resolve this problem with the cooker.

The company were in effect accepting that deli staff making a joke out of the Complainant was acceptable to them and all the responsibility for the incident was placed on the shoulders of the Complainant.

Neither the company or the other staff were accepting of any responsibility for the situation which was not of the Complainant’s making. He was simply trying to be helpful and assist the staff with a problem cooker.

Therefore, the company must accept responsibility for this situation as they failed to provide clarity on his role as Maintenance team Member. He had no Job Description and various local and senior managers had made requests to him for a variety of maintenance work, including retaining, restoring and repairs to various equipment at a number of locations, which required drills/ hand tools which he himself had provided from his home.

This employer did not provide any adequate clarity on his role, use of equipment or adequate PPE other than High viz vest and Boots.

The Employer has taken the view that because H.R. and very senior management had not authorised the Complainant to carry out this work is wholly unacceptable, Local and middle management are agents of the company and they had on a number of occasions requested the Complainant to carry out this type of work

Outcome of Internal disciplinary process:

The H.R Manager issued her decision by letter dated 7th November 2018 to the Complainant in which she found him guilty of misconduct stopping short of dismissal by demoting him to that of Team Member with effect from 19th Novemebr2018.

The Complainant was also presented with a contract of employment containing terms and conditions whereby he suffered substantial financial loss together with other punitive Terms of Employment.

Appeal of Internal Disciplinary sanction.

The Complainant appealed that disciplinary sanction to Mr JB ESA Consulting who was nominated by the company to hear the appeal which was heard on 14th November 2018.

Mr JB issued his report received by the Complainant on 16th November 2018 in this report he found inter alia that- the Complainant is an honest employee and that no wilful act or malice intent behind his actions.

He did not accept the claim by shop staff that they were joking with the Complainant when they asked for assistance in the circumstances surrounding the issues of cleaning chemicals. He found that their statements did not stand up to logic.

He found the charge of gross misconduct ill advised and excessive in its application.

Mr JB set out three options to the Employer as follows:

1.       Issue a sanction but not dismissal and seek recovery of its losses by way of mutual agreement from the employee.

2.       Retain the employee on the actual functions and duties he is or was required to do cleaning and maintenance and provide a probation period and performance reviews and same should have responsibilities, accountability and consequences for noncompliance or compliances.

3.       Remove the employee from the role and place him in a different role that does not expose the company or the employee to the possibility of future risks, However, take into consideration the fact that he has enjoyed the benefits of an increase in income and other associated benefits and by its very nature a status improvement from Sales assistant /Team Member assistant to field maintenance /cleaning. Consider the possibility of a grade improvement.

On 16th November 2018 the Managing Director wrote to the Complainant setting out that the company were applying option 3 arising from Mr JB’s Report. This option was almost identical to the sanction set out by the H.R. Manager with the exception of an improved hourly rate of €12 in addition the MD referenced that the company would not be seeking recovery of their loss but, seeking recovery of their loss was option 1 not option 3.

The Complainant had serious concerns about the Contract of Employment issued to him in respect of option 3 and the pressure from the Respondent that the Complainant sign this contract of Employment prior to his returning to work together with the contents of the letter from the MD dated 16th November 2018 had the effect of making him feel very aggrieved.

THE Complainant wrote to the MD on 16th November 2018 seeking an early meeting to clarify aspects of Contract of Employment in addition to the proposed new role and responsibility. In that letter THE Complainant had said he requested an extension of time one week to consider the letter and requested a meeting with the MD to try to resolve matters. This request was refused so, The Complainant was compelled to go to the WRC in the meantime, the Employer refused to pay him even though appealing to the WRC is in keeping with procedures.

By letter dated 19th November 2018 the MD refused to meet with the Complainant and advised him, that he had exhausted all stages of company procedures and he was now absent without approval and would not be paid.

It is the belief of the Complainant that he was treated most unfairly by his Employer when all the circumstances are taken into consideration namely:

·         First blemish in an otherwise excellent work record.

·         Honest, hardworking, cooperative, flexible.

·         Apologised for his error.

·         No wilful or malice intended.

·         He did not initiate the incident but was responding to deli staff who approached him for assistance, those same deli staff who subsequently refused to accept that they requested the work to be carried out.

·         There was no manager on duty on the night in question.

·         Shop staff were aware he was carrying out the work.

·         11 years unblemished work record.

It should be noted that in the Maintenance and Operations team Member contract issued July 2018, under Position and place of work in this position states:

“You are required to be flexible in this position and must be prepared to undertake such other duties as may be assigned to you by the company from time to time. Such duties can be outside the area of your normal work.”

He had carried out a variety of maintenance work for various shop managers the fact that H.R. or head office were not aware he was carrying out this level of maintenance work and /or that he was providing his own tools is no excuse and the employer cannot now abdicate responsibility for lack of training or provision of proper PPE by now claiming that this was not his job.

The charge of gross misconduct by the employer was over the top and excessive.

Given this was a one-off situation the employer was unreasonable in refused to apply the purpose of their own Company Disciplinary Policy which states inter alia--4.1.1.

“The company is committed to treating all staff fairly and equitably and to helping employees perform effectively”.

4.1.3 states-

“The company aims to avoid situations requiring disciplinary action to be taken. An informal procedure is included in the policy in an effort to ensure that where company standards and rules are not being adhered to, an employee’s Manager/Assistant manager may raise these issues with the employee concerned in an informal manner, to address the situation and resolve it without initiating disciplinary action”.

Furthermore 4.1.6. states inter alia that—

“nothing in this policy affects an employee’s right to further appeal in line with the Workplace Relations Code of Practice”.

The Complainant considers that by the employer taking him off the pay roll from 20th November 2018, was in effect a disciplinary sanction while he was in process and abiding by company procedures with his appeal to the Workplace Relations Commission.

The Employer in dealing with a once off situation for a long serving loyal employee applied the full harshness of formal procedure and refused to engage with their employee to try to resolve the matter or recognise their own stated aim of avoiding situations requiring disciplinary action.

The company refused to meet the Complainant and stopped his wages because he exercised his right to appeal to WRC as he was concerned by the company attempt to force his to sign a contract of Employment placing him at a serious disadvantage.

Example of disadvantage and financial loss.

A. Rate of pay as maintenance Team member a definite 40 hours per week €25.000 P.A plus company car.

B. Under the new contract pay €12 per hour hours of work specified 35 to 40 hours. Loss approx. €3.000. PA in salary. The hours of work are not specified as 40 hours per week as per his original contract.

C. Plus additional cost to travel approx. 40 KLM round trip.

D. In addition, he was now to be employed on a 12 months probationary period where he would get one weeks’ notice of the termination of his employment despite the fact, he had 11 years’ service and no previous disciplinary issues.

E. Loss of pay from 20th November 2018.

All of the above imposed the most punitive on-going sanctions for a first offence that was not of his making.

This does not reflect a fair or equitable approach by the Employer who was extremely zealous in the application of the formal Disciplinary charges of Gross misconduct.

The claim.

The Company behaved unreasonable and the Complainant should be returned to his maintenance role with company car, plus proper and adequate training/ tools and PPE. His job description to be clearly defined plus back payment of his salary from 20th November 2018.

History:

The Complainant in this case, is respected and liked by the management and the employer has no issues with his commitment or enthusiasm. The Respondent is desirous that the Complainant accepts that the decisions pursuant to his actions and the process that took place does not reflect on him as a person, but on the issues that were dealt with through a comprehensive process.  

The genesis of the Complaint:

1. The Complainant asserts by way of his application on the 20/11/2018 that through a synopsis wherein he says, “I work as a maintenance operator”.
2. That for six weeks before his suspension he was on one of the company sites (Petrol Station).
3. That while there, he was approached by members of the deli staff, regarding an issue with a steel panel.
4. That the steel panel was put on a moveable unit and was in their opinion a problem.
5. That it was causing problems re chemicals and he was asked if he could take it off.

The facts:

1. The Complainant is a cleaning maintenance person, whose responsibility is to clean. He is not qualified nor employed to perform the duties he undertook regarding the removal of a shelf, as he is not a mechanical or electrical maintenance worker and should not have undertook the work in the fashion he did, or to remove the shelfing whatsoever.
2. The Complainant has undertaken works of electrical nature, on the bases of instructions he says from store managers, but again without the knowledge of the owners. That he did this work outside of working hours.
3. That his actions invalidated the warranty of the unit he worked on.  
4. That he contaminated food for sale.
5. That staff were paid 2 hours pay not to work.
6. That he acknowledged he did not use any procedures to protect food.
7. That it was not safe to allow him to continue in this role for a number of reasons.
8. That in any other circumstances the Complainant would have been dismissed.
9. The Respondent followed its procedures to the letter, respecting SI 146, and paid the Complainant his full pay while on suspension.  
10. That their decision is within their rights as an employer.
11. That the sanction was not only proportionally fair but in fact was considerably more just than he was entitled to receive, righter than retuning him to the position he held. Six weeks previously he was given a higher position and more money but was not permitted to act as a cleaning maintenance operator.

Issues of Conflict:

1.       The Complainant was never employed as a maintenance operator in the sense he describes himself.

2.       The work sheets will demonstrate that he was a cleaner.

3.       It is not denied that he was asked to assist with an issue regarding signage during the storm, but that was exceptional and not standard.

4.       The Complainant asserts that the Deli staff asked him to remove a shelf, the deli staff say it was not an instruction as they do not have such rights but a joke, regardless they did ask him, but nonetheless he should not have undertaken the task.

The Procedures:

1. 1. Post facto, the Respondent commenced an investigation.

• The Complainant was provided with full disclosure and participated in the process.

1. The conclusion of the investigation found that the Complainant had on the 9th October 2018 while on site, used an angle grinder, a tool he took on to the premises without permission to remove a shelf from a purchased unit. (using an angle grinder requires certification and training) Safety Health Welfare Construction Regulation (Amended) 2016 part 12 (I) of section 16 point 213 (3).
2. That he acted on a request by a staff member in the deli to perform the task. That he did not seek nor was given any authority to perform this task. That the equipment used was not approved or owned by the Respondent and that contrary to safety he did not used PPE. (Personal Protection Equipment) of safe procedures as required by HACCP.  
3. That subsequently the flowing day a problem arose that required an inspection in the same locus of the work the Complainant performed. During the inspection it was discovered that his actions contained food product with metal particles.
4. The finding which comprised of 49 pages and included inter alia, witness statements, SOP’s, incident reports, CCTV images, and conflicting evidence as to the Complainant’s request to carry out this work. Minutes of the investigation meeting were taken and the Complainant acknowledges he signed them.
5. Further questions arose during the investigation and the Complainant was asked in writing to respond to them. This he did.  
6. The Complainant in his response confirmed that one of the many mistakes he made pursuant to this incident was giving credence to the request. Nonetheless he did, and that was evident in the removal of the shelf, the collateral damage caused.
7. The matter following the investigation was passed on to the HR Department.

Disciplinary Hearing:

1.       On the 31st October 2018, a disciplinary hearing was held, again all rights associated with SI 146 were provided.

2.       The matters were considered Gross misconduct.

3.       The outcome which was issued on the 7th November 2018 concluded that the Complainant had breached several issues:

4.       After careful consideration of the facts, the evidence collected during the investigation and the explanations you gave including mitigating circumstances, I have concluded that your actions on the 9th October 2018 represented a health and safety breach and a food safety breach with potentially serious consequences for yourself, your colleagues and our customers.   These consequences could have resulted in the company being brought into serious disrepute. In addition, your actions resulted in lost deli trade for the company for approximately 2 hours along with a wastage cost of c€151.20.

The Sanction:

1.       The Company issued a sanction and decided that the best option was to remove the Complainant from this type of work.

2.       It was evident that he had a different approach to Safety and HACCP and was inexperienced when it came to discern the remit he had and the scope he was permitted to undertake.

3.       In line with the company disciplinary policy these actions constitute gross misconduct, for which dismissal is the normal sanction. Notwithstanding this, the Company gave consideration to the Complainant’s previous employment history with the company along with his apology for the incident and the mitigating factors he presented. The Company therefore concluded that the sanction will be action short of dismissal and the Complainant was demoted to the position of Team Member Assistant in xxx store with immediate effect. The terms and conditions would be those relevant to the Team Member role where to be outlined in a contract of employment to the Complainant.

Appeal:

1.       The Complainant was afforded the right to appeal against this decision and to be heard by an external Company. The Complainant was notified that he had 5 working days from the date of the sanction letter to appeal the decision to Mr. JB of ESA Consultants. He was further advised that the demotion to the role of Team Member Assistant would not prejudice the outcome of the appeal in any way. Any change resulting from the outcome of the appeal will be applied retrospectively to the date of this letter.

2.       The Appeal was heard on the 14th November 2018, during all this time the employee was on full pay.

3.       The Appeal was conducted in line with SI 146.

Grounds for the Appeal:

1.       The appeal letter sets out a well-structured and in a concise manner a number of reasons as to why the outcome of the disciplinary hearing was unjust:

A.      Target of a joke by staff members

B.      Not received proper or adequate PPE

C.      Job specific training or tool required for the work the Complainant was expected to under take

D.      Reference to section 8 (1) (2) including clauses A-I therein pursuant to the SHWWA 2005.

Conclusion of Appeal:

1. Found that the employee exceeded his remit and put himself and that of others at risk, nonetheless it found that the disciplinary approach where it was considered gross misconduct was excessive in its application.
2. The finding also found the company did not breach section 8 of the HSWWA legislation, by virtue of its understanding that the employee role did not include the type of work he carried out (ipso facto he was not required to wear the type of PPE he asserts was not supplied) ((Emphases added))
3. It found the works carried out by the employee would need to be inspected to ensure they are compliant with health and safety such as electrical fitting. (reference all work carried out by the Complainant)
4. Therefore, the company was asked to consider the following options:
5. Issue a sanction but not dismissal and seek recovery of its losses by way of mutual agreement from the employee.
6. Retain the employee on the actual functions and duties he is or was required to do cleaning and maintenance and provide a probation period with performance reviews, and same should have responsibilities, accountability, and consequences for noncompliance or compliances.  
7. Remove the employee from the role and place him in a different role that does not expose the company or the employee to the possibility of future risks. However, take into consideration the fact that he has enjoyed the benefits of an increase in income and other associated benefits, and by its very nature a status improvement from Sales Assistant to field maintenance/cleaning. Consider the possibility of a grade improvement.    

The Respondents Decision:

1. The Respondent accepted the recommendations of the Appeal insofar as they offered the Complainant the Team Member Assistant.
2. The rate of pay was higher than others.
3. The Complainant appeal resulted in a different outcome to the disciplinary sanction,

The Complainant Response:

1.       The Complainant refused to accept the decision.

2.       He refused to take up the post despite being advised that he should do so, even under protest as he would be at a loss of income.

3.       The Complainant received several such requests, but to date has not returned to work.

Conclusion:

The Respondent say that they had every right to sanction their employee, and it’s not for anyone to say we would do it this way or that way. The principles of fair procedures and natural justice is the corner stone of the process. The employer followed its own process and observed SI146. They concluded based upon the circumstances that the Complainant in this case breached their procedures and that his actions on the 9th October 2018 represented a health and safety breach and a food safety breach with potentially serious consequences for himself, his colleagues, and their customers. That as a direct result they were at a loss in the Deli trade for their business of approximately 2 hours along with a wastage cost of circa €151.20.

The right to dismiss was within their jurisdiction. They elected to give a lesser sanction and in doing so protect their business, their staff, the Complainant and customers.

The Complainant has not accepted their ruling and has suffered unnecessary financial loss. We ask that the adjudicator confirm that the Complainant, should accept the company’s decision, and take up the offer.

At the appeal stage of the process the Appeals Officer refers to section 8 of the Health Safety and Welfare at Work legislation i.e. the Health Safety and Welfare at Work Act, 2005. Section 8(2)(g) of the Act states “providing the information, instruction, training and supervision necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees”. On the night in question there appears to have been no one in charge (manager/supervisor or senior person) who could have stopped the activities of the Complainant before they started. It may be argued that having no one in charge is potentially a breach of this section of the legislation.

The Appeals Officer also raises, at point 11 of his findings, there is an issue with communication, “on the one hand the employer had a role for the employee, and the employee with some enthusiastic demeanour took on roles but then went outside of his skills, qualification or right. This was however partly due to the shop manager’s requests and his line manager at the tie. However, the employee regardless of his eagerness should not have performed many of the tasks he did, and they will now need to be inspected to ensure they are compliant”.

I am convinced that whatever the Complainant done on the evening of 9th October he may well have been asked to do or at the very least there was no efforts made to stop him from doing it.

I note from the Disciplinary Meeting Minutes that the Complainant had been asked in the past to do work that could only be described as maintenance e.g. fixing the sign at Merrion Gate, a job that required him to climb onto the roof of the building.

During the hearing of the complaint the Representative of the Complainant quite clearly states that the Complainant was never issued with a job description for his role as a Maintenance and Operations Team Member. His contract of employment does state “You will be required to be flexible in this position and must be prepared to undertake such other duties as may be assigned to you by the company from time to time. Such duties can be outside the area of your normal work”.

I presume that management have discussed the entire event with members of the deli team on duty on the 9th October and commented on what their idea of what a joke may or may not be.

In conclusion I feel that if the Complainant is guilty of anything it is that he is guilty of trying to be helpful.

This entire episode has been caused to a great extent by a lack of two-way communication and a line manager not knowing what work one of her team was being asked to do.

The Appeals Officer offered three options as a possible outcome:

1.       Issue a sanction but not dismissal and seek recovery of its losses by way of agreement from the employee.

2.       Retain the employee on the actual functions and duties he is or was required to do cleaning and maintenance and provide a probation period with performance reviews, and same should have responsibilities, accountability, and consequences for noncompliance or compliances.  

3.       Remove the employee from the role and place him in a different role that does not expose the company or the employee to the possibility of future risks. However, take into consideration the fact that he has enjoyed the benefits of an increase in income and other associated benefits, and by its very nature a status improvement from Sales Assistant to field maintenance/cleaning. Consider the possibility of a grade improvement.

My recommendation is that Option 2 be adopted. The Complainant should be re-instated to this position, issued with a very precise job description and should he be requested to do anything outside of this description he should check this out and seek approval from his line manager. The Terms and Conditions of Employment prior to this incident should also be re-instated.  

As outlined above.