ADJ-00015934

Complainant

Respondent

Anonymised Parties

Waterworks Caretaker

A County Council

Representatives

NiallPhillipsSIPTU

 Mary Lindsay

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-00020714-001

23/07/2018

The Complaint is that a disciplinary process undertaken by the Respondent against the Complainant was unfair and the sanctions applied were disproportionate to the offence.

The Complainant has worked for the Respondent since 1979, mainly in the west midlands area.  His role was a caretaker of the waterworks that supplied water to a large midland town and its outlying area. From 1979 until 2017 the Complainant had never been involved any disciplinary process. The Complainant worked with his brother and was his brother’s line manager. In March 2017 due to difficulties that his brother was encountering he raised these issues with his immediate line manager. He met with his line manager and a senior executive engineer. During the meeting, the Respondent managers became irate and accused him of threatening to shut off the water supply for a town, which was a baseless allegation. The Complainant was offended by this remark and alarmed at the attitude being taken towards him. He withdrew from the discussion and the meeting. The attitude of the Respondents was both defensive and aggressive. The following day the Complainant’s line manager accused him of showing him up in front of the senior engineer. From then on, the Complainant felt that management was “out to get him” and this made the Complainant very wary. The Complainant was subsequently disciplined for failing to attend a disciplinary meeting. The Complainant had been agreeable to attend but was told that he could not bring his trade union representative, so he declined. On 9 March 2017 the Complainant was told that he had been disciplined under the Respondent’s Disciplinary policy and that his insubordination amounted to serious misconduct. The sanction was that he had a verbal warning on his file for 12 months; he would be relocated to a different water district and he would no longer do network repairs and consequently would not receive the repair allowance (value €12,000 per annum). Furthermore, as his new position did not require him to travel he would lose his travel allowance (value: €12,000). In 2017 he took out a loan out to pay for a new van to do the repair work and at the time of the adjudication hearing he was still repaying this loan of €500 per month in respect of a van that he no longer needed.  The Respondent also put the Complainant on administrative leave on full pay on 9 March 2017. He was not permitted to return to work for a period of 14 months, while the issues were being investigated. This period of administrative leave was difficult for the Complainant as he was someone who had always worked.

The Complainant appealed the serious misconduct finding and the findings and the sanctions were upheld. The Complainant lodged a formal grievance and ultimately while the finding of serious misconduct was lifted, the sanctions imposed remained the same.

The complainant alleges that even though no serious misconduct finding was ultimately found, the penalty that was being applied against him was as if a finding of serious misconduct had been upheld.

The complainant seeks compensation to remedy the losses in respect of a repair allowance worth €10,000 per annum a travel allowance worth €12,000 per annum and compensation for the fact that he was out of work on administrative leave on an involuntary basis for a period of 14 months which was excessive and during which time he wished to return to work.

On day 2 of the Adjudication hearing the Respondent had made an offer to resolve the IR complaint

An offer of €18084.15 in relation to the loss of allowances (which would be taxable) and €1915.as compensation for the poor way that his disciplinary process was handled. While the Complainant indicated he would accept the loss of allowances offer he felt that the compensation offer was too low given that he still had ongoing expenses following the decision to relocate him. Apart from the loss of repair allowance, he no longer received traveling expenses (worth €12000) and he had a van loan to service. He contended that due to the unnecessary and inordinate delay in processing the disciplinary and grievance process the administrative leave for 14 months was unconscionably long and he should be compensated for this.

On the first day of the Adjudication the Respondent contested the case on the basis of the following:

The Complainant refused to cooperate with an investigation into his alleged insubordination. He refused to attend meetings. This amounted to misconduct and the penalties imposed upon him were not to penalise him but rather were because his working relationship with his colleagues had utterly broken down. The reason that his work location was changed was that he would no longer have dealings with those with whom his relationship had broken down. In terms of consequences of that transfer; he would no longer be paid an allowance or travel expenses for work that he was no longer expected to do. This was not a penalty but was merely a consequence of the transfer.

On day 2 of the Adjudication hearing the Respondent accepted that the matter would be resolved by making an ex gratia payment to the Complainant of a lump sum. This would be a full and final offer of €18084.15 in relation to the loss of allowances and €1915.85 in relation to compensation for the manner in which his disciplinary process was handled.

The Respondent acknowledged that the Complainant was agreeable to the offer of €18084.15 in relation to the loss of allowances but heard that he did not agree to the €1915.85 in relation to compensation for the less than adequate way in which he was disciplined.

I find this complaint to be well founded. I do not consider that the original incident in March 2017 and the Complainant’s action that followed justified a finding of serious misconduct and I accept that this finding was remedied by the Respondent before the complaint was brought to the WRC. There was a failure to deal adequately with an argument that developed that day and the response by management to the Complainant was over reactive and disproportionate. 

I find that the changes brought to his contract of employment were considerable and amounted to great changes to his typical working day. He lost out on allowances and expenses and he was placed on administrative leave for too long a period of time, which undoubtedly gave him a 14 month period of no work, which for an active and able worker must have been frustrating and upsetting. The Complainant had worked since 1979 with no difficulty and this somewhat remarkable fact was not taken into account.

The Respondent concedes that they will pay to the Complainant a sum in respect of the loss of a repair allowance (approximately €18,000 and I agree that the amount agreed, is adequate)

In respect of the other matters, I find that the offer is inadequate to remedy the manner in which the Complainant was treated and the inordinately long period that he was placed on administrative leave. I do not accept however that I can take into account, losses of travel expenses that he will not now suffer as his new position does not require the Complainant to travel.

In respect of the loss of the allowance and to remedy the unfair manner in which the Complainant was treated and the length of time that he was placed on administrative leave, I recommend the overall award in this case to be the sum of €23,000.00. This award encompasses the amount agreed in respect of the loss of repair allowance.

I recommend the overall award in this case to be the sum of €23,000.00. This award encompasses the amount agreed in respect of the loss of repair allowance.