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-00024050-001

12/12/2018

The Complainant is employed as a Security Van Driver on a full-time permanent basis with the Respondent since 5th June 2014. His current rate of pay is €15.15 per hour and he works 40 hours per week.

This complaint was received by the Workplace Relations Commission on 12th December 2018.

1.       The Complainant is employed as a Security Van Driver on a full-time permanent basis with the Respondent since 5th June 2014. His current rate of pay is €15.15 per hour and he works 40 hours per week. The Respondent operates a Cash in Transit company.

1.       On 18th August 2018, The Complainant was driving for work on a run to Sligo. During the journey he noticed that the speedometer, air conditioner and all lights including the brake lights were not working. There had been previous issues with vans on several occasions before in different vans in the fleet and he had filed complaints and reports in relation to this. As it was a Saturday, the Complainant called the Control Centre to report the problem but was advised by the Control Centre to continue to drive the van as long as it was safe to do so. The Complainant was aware at this stage of the seriousness of the issue but was also mindful of the fact that his transit run had to be completed.

2.       The Complainant therefore decided that as the Control Centre could not help him he would instead contact his Transport Manager. However, he did not receive any response or a call back from the Transport Manager.     It was at this point that he felt that he had no choice but to video record the speedometer gauge that was not working and text it to the Transport Manager and two other managers in the hope that one of them would assist him.

3.       Shortly after sending the video, the Transport Manager called him back and the Complainant explained the issue. The Transport Manager advised him to call a mechanic, which he did. When he met the mechanic at an agreed location the mechanic advised him that he needed access to the inside of the van. As it is against Company Policy and PSA Security guidelines to allow a third-party access to the van, the Complainant was unable to allow the mechanic access. The mechanic understood this and advised that he would follow the van as far as Mullingar and if the issue did not reoccur, the Complainant was safe to drive on to Dublin, which he ultimately did.

Submissions

4.       This was the last the Complainant heard of the issue until 23rd August 2018 when he was approached by Mr OA (a senior manager) in an informal manner and asked about his run the previous day on 22nd August 2018. During the conversation, Mr.OA asked the Complainant about the video message he had received from him on 18th August 2018. The Complainant explained what had happened that day. At no time during the discussion did Mr. EO advise THE Complainant that this discussion was a formal meeting or an investigation. In addition, the discussion ended without any reference to further action.

5.       On 28th August 2018, the Complainant received a letter by way of email from the HR Director, inviting him to attend a disciplinary hearing on 3rd September 2018 to discuss ‘taking a video clip of the dash of [his] vehicle while driving on the N4 motorway’.   The letter implied that the discussion between the Complainant and Mr. EO on 23rd August 2018 was an investigation meeting and confirmed that the Complainant was entitled to representation at the disciplinary meeting.

6.       The Complainant was naturally surprised and shocked to receive this letter. As mentioned above, he had not been previously informed that the discussion on 23rd August 2018 was part of an investigation or potential disciplinary process. The meeting was not conducted in a formal manner and he was not aware that any minutes of the meeting had been taken. In addition, the details in the allegation were incorrect.

7.       Despite this, the Complainant agreed to attend the meeting and requested that it be rescheduled as he would be on annual leave at that time. The meeting was rescheduled for 10th September 2018.

8.       In the meantime, the HR Director emailed the Complainant on 30th August 2018 saying that she was aware that he was upset about this situation and asked to meet with him. When he called to her office, the HR Director mentioned the Complainant’s membership with the union and in unsavoury language said that he ‘was shit and his union membership was causing a lot of shit for the company’. This made the Complainant feel uncomfortable and targeted from this point on.

9.       The Complainant attended the first scheduled disciplinary meeting on 10th September 2018 and brought a SIPTU representative with him. Unfortunately, however, the HR Director insisted that the SIPTU representative was not allowed to speak and was there only to observe. The SIPTU representative attempted to raise the issue that the details of the incident as set out in the letter dated 28th August 2018 were incorrect as the Complainant was not driving on the N4 motorway on 18th August 2018. However, the HR Director refused to allow the SIPTU representative to speak and behaved in a very aggressive, intimidating and unprofessional manner. The HR Director then abruptly ended the disciplinary meeting without any explanation or reason and as she was getting up from the table pointed at the Complainant and aggressively said ‘trust me, this is not going to be good for you’.

10.   Early the next day on 11th September 2018, the HR Director issued the Complainant with a new disciplinary letter setting out a new allegation of ‘taking a video clip of the dash of your vehicle while you were driving’ and arranged for a new disciplinary meeting to take place on 17th September 2018. In addition, the HR Director told the Complainant that this time he had a limited right to representation and explained that any answers given by his representation would be discounted in her consideration of the facts. The HR Director also reiterated her threat in writing that ‘this is not good for you.

11.   As a result of the above behaviour and clear lack of fair procedures and impartiality, the Complainant’s SIPTU representative wrote to the Managing Director, requesting that a new person be appointed to hear the disciplinary. However, a response was never received.

12.   The rescheduled disciplinary meeting took place as planned with the HR Director on 17th September 2018. The Complainant explained that he took the video of the speedometer because it was not working and due to it being a Saturday was unable to get clear advice or instructions from anyone as to what to do about this. He explained that over the last number of months he had made a number of complaints and reports in relation to the working conditions of the vans and felt that these issues were serious enough to amount to ongoing breaches in health and safety. He said that his previous complaints had been ignored and his attempts on 18th August 2018 to resolve the problem he was facing were also being ignored. He said that he therefore felt that he was left with no choice but to video the speedometer and send it to the other managers.

13.   Despite these reasonable arguments, the HR Director issued a final written warning to the Complainant on 19th September 2018 stating that this incident ‘further demonstrates a decline in [his] attitude and behaviour…. in the past 3 months.’ The Complainant was never provided with any minutes of either disciplinary meetings and is still unaware what this sentence in his outcome letter is referring to.

14.   The Complainant has felt that the delayed reaction and disciplinary to this recording has more to do with the previous complaints he has made and his recent uptake of Shop Steward than the recording itself.

15.   The Complainant appealed the sanction by way of email on 25th September 2018 on the grounds that it was clearly predetermined and that he had been denied a right to fair procedures and an impartial decision maker, despite repeated requests.

16.   The appeal hearing took place on 11th October 2018 and was heard by the Chief Operating Officer. Despite raising his concerns in relation to the lack of a proper investigation, the HR Directors behaviour towards him as a result of his union membership, the aggressive and intimidating manner in which the disciplinary meetings were conducted, managements refusal to appoint a different decision maker, his right to representation being limited, management’s refusal to consider the context surrounding the incident concerned and the lack of fair procedures generally, the appeal was not upheld and he was advised on 25th October 2018 that all the internal procedures had been exhausted.

17.   SIPTU therefore referred the issue to the WRC under Section 13 of the Industrial Relations Acts 1969. The Complainant is appealing the final written warning and is seeking a favourable recommendation that it is overturned and removed from his file.

Conclusions

There was a lack of fair procedures and impartiality during the disciplinary process:

·         The Complainant was not informed of the existence of the alleged investigation meeting or what it was in relation to;

·         The Complainant was denied the right to any representation at the alleged investigation meeting;

·         There was no proper or genuine investigation into the incident that took place on 18th August 2018;

·         The allegation that was first put to the Complainant in relation to 18th August 2018 was incorrect;

·         While this allegation was later rectified, the disciplinary procedure had already begun;

·         The Complainant was not provided with any meeting minutes from the alleged    investigation meeting or either of the disciplinary meetings;

·         The Complainant was denied adequate representation at both disciplinary meetings;

·         The Complainant was spoken to in an intimidating, targeted and unprofessional manner at both disciplinary meetings;

·         The Complainant’s request for a different decision maker as a result of the above issues was ignored and ultimately denied;

·         As a result, the Complainant was denied a fair and impartial disciplinary hearing in the end;

·         The outcome letter confirms that the context behind the incident on 18th August 2018 was not given genuine consideration; and

·         The outcome letter refers to his behaviour in the ‘past 3 months’ which remains unexplained and ominous and was not an original allegation being considered in the disciplinary process.

The Complainant was victimized and targeted by management because of his trade union activities:

·         The HR Director made clear and direct negative comments to the Complainant in relation to his union membership both at their meeting on 30th August 2018 and their meeting on 10th September 2018;

·         The HR Director reiterated this threat in writing by way of email on 11th September 2018;

·         The HR Director was disrespectful and rude to the Complainant’s union representative both in writing and in person at the two disciplinary meetings;

·         The HR Director curtailed the ability of the union official to adequately represent the Complainant and

·         The HR Director refers to the Complainant’s behaviour in the past 3 months in her outcome letter which implies his disciplinary sanction is in relation to something other than the allegation put to him.

The context behind the events were not given genuine consideration and the sanction imposed is unfair, severe and disproportionate to the events.

·         The Complainant explained in a clear and reasonable manner the events that led to him recording the speedometer. These were not given any consideration by management. This is evident from the lack of an investigation process and the dismissal of the Complainant’s health and safety concerns in the outcome letter;

·         The Complainant has a minimum of 4 years’ service with the Respondent;

·         The Complainant has no previous conduct issues, informal or otherwise;

·         There were other less severe sanctions open to the Respondent when considering the facts in this situation;

·         The issuing of a final written warning is therefore severe and disproportionate in the circumstances.

Background to the company

The respondent company is engaged in the business of providing cash in transit (CIT) services to retail and banking corporate customers in the Republic of Ireland. The company currently employees 220 staff.

Background to the Claimant

The Claimant commenced employment with the respondent company on 5 June 2014 as Cash in Transit Driver. In his role as Cash in Transit driver, the Claimant is responsible for the safe and secure delivery and collection of cash/coin from our customers. Given the nature of these duties, the claimant is tasked with driving a heavily armoured vehicle to customer sites to pick up and deliver cash.

Background to the Issue

On 18 August 2018, the Claimant was on a run to Sligo. During his journey, The Claimant noticed an issue with his vehicle. The dashboard went blank and the Claimant took a video of the dashboard with a mobile phone while he was driving the company armoured vehicle.

The Claimant reported the accident to the Control Room. He was told to drive ‘only if it was safe to do so’. The Claimant called the mechanic who was despatched from Roscommon to meet him and when the mechanic arrived with the Claimant, the Claimant refused to allow him into the vehicle to see what the issue was. The mechanic proceeded to travel behind the Claimant to Mullingar and reported that all electrics (brake lights etc) were working from the outside.

The Claimant sent the video to his manager Mr OE. Mr OE invited the Claimant to a meeting to discuss his general performance and in the same meeting discussed the video he sent while he was driving a company vehicle. The Claimant admitted taking the video and Mr OE told The Claimant that as this was a very dangerous thing to do, he would be passing this onto HR.

The Claimant was sent a letter on 28 August 2018 inviting him to a disciplinary meeting on 3 September 2018 in relation to serious breach of the rules of the road which potentially would constitute gross misconduct as per the company Disciplinary Procedure. The Claimant responded to request a postponement as he was on holiday. The meeting was postponed until 10 September 2018. The Claimant informed HR that his representation of choice was a full – time SIPTU official.

Sometime before the disciplinary meeting, a colleague of the Claimant approached the HR Director and reported that the Claimant was very upset and was crying in the Warehouse before his run in the morning – he told the colleague that he was upset about the issues that were going on with HR. The HR Director sent as email to The Claimant requesting to see him to see if she could talk to him and see what the problem was and to assure him that the company didn’t want to frighten him.

In the meeting, the HR Director spoke to The Claimant about how he was and what his issues were. She assured him that although we needed to go through the process, we would endeavour to ensure that as long as he was contrite about what had happened, we would do everything to secure his job.

At the disciplinary meeting on 10 September 2019, the SIPTU Official refused to allow HR ask direct questions of the Claimant. The HR Director stated that she wanted to hear answers direct from the Claimant however the Siptu Official would not allow this. The HR Director postponed the meeting when it was clear that the Siptu official would not allow any direct communication with the Claimant. On leaving the meeting, the HR Director said to the Claimant that ‘this was not good for him’ – and later explained in email that since he was already upset, it would not be good for him to prolong this process.

The meeting was reconvened after issuing a subsequent letter to The Claimant setting out the remit of representation – ‘right to present and/or sum up facts or issues and say things that support their case. They can confer during the hearing but cannot answer questions on their behalf’

At this meeting, the Siptu official stated that the Claimant was invoking his rights under Whistleblower’s Policy so the Company could not make any decision on a disciplinary issue. The Siptu Official stated that he had informed the Garda and Health & Safety Authority regarding the issue of the unsafe vehicle. In the same meeting, the Claimant again admitted that he had taken the video while driving the company vehicle.

It was the HR Director’s opinion that further to the Company’s Disciplinary Procedure, the above incident and subsequent investigatory findings amounted to Gross Misconduct. The Company’s Disciplinary Policy clearly states Gross Misconduct as: -

·         Breach of Health & Safety Regulations

Given the seriousness of this driving offence, the Company could have chosen to dismiss the claimant on the grounds of Gross Misconduct. However, the HR Director took into the Claimant’s previous employment history and issued a final written warning instead.

The claimant was offered the opportunity to appeal this decision. The claimant made an appeal on the basis that

1. He had concerns regarding fair procedures and impartiality of the disciplinary procedure

2. He felt he needed to video the dash to prove that there were issues with the vehicle

3. The issue was made under a protected disclosure

4. He was targeted because he was a member of a Trade Union

The appeal was heard on 11 October 2018 by Chief Operating Officer. The Claimant admitted again that he took a video while driving the company vehicle. He argued that he was being victimised because he was a member of a Trade Union but admitted that he never told anyone that he was a member of a Trade Union.

Following due consideration of the facts, the Appeals Manager upheld the original disciplinary sanction. The claimant was issued with a letter on 19 October 2018 wherein he was advised that the original disciplinary sanction would be upheld.

Company Arguments

1.       The Claimant took a video while driving an armoured CIT vehicle – hence endangering both his own life and the lives of other road users and therefore breaching the legal rules of the road.

2.       During the course of the investigation, disciplinary process and the appeals process, the Claimant admitted taking the video. Given that driving is an inherent part of the Claimant’s job, the Company would have been remiss in not taking a strict course of action. Disciplinary action is absolutely warranted this case. So, following the application of fair procedures and taking into account the claimant’s service, the Respondent Company decided not to dismiss the claimant but instead issue a final written warning.

Conclusion

In conclusion, the Company would again re-affirm its position that it was both just and reasonable in all its dealings with the claimant, and the Company would ask that the Adjudication Officer find that the disciplinary sanction was fair and thus the claim not well founded.

The following is taken from a leaflet issued by the Road Safety Authority (RSA):

“It is illegal to use a mobile phone while driving. Using a phone as a driver takes all your attention off driving so you’re putting yourself and the lives of other people in danger. Even if you are a careful driver, you can easily get distracted by a phone call or text message and you could have a crash”.

I don’t believe anyone can disagree with this statement. What the Complainant done on the day in question was wrong.

On 23rd August (some five days after the incident in question) the Complainant was approached by Mr OE and asked about his run the previous day. During this conversation the issue of the video from 18th August was brought up by MR OE, it is the Complainant’s contention that at no point during this conversation did Mr OE inform the Complainant that this was an investigation and the discussion ended without reference to any further action.

In the summary from Mr OE it would appear that the discussion between the two men was about the Clondalkin run and comments made by the Complainant in relation to same. During this conversation Mr OE states the following:

“I said in future he was not to act in the way that he did as it was dangerous and counterproductive. I said I would be passing the notes onto HR for review of both instances”.

This was the only mention of notes being taken. This was not an investigation meeting.

The next communication received by the Complainant was an invitation to a formal disciplinary meeting. This letter went onto say that this was an “extremely serious allegation and may constitute gross misconduct which could result in disciplinary action up to and including dismissal”.

Looking at the policies produced by the Respondent at the hearing of this complaint it is not exactly clear where the alleged offence lies: These are the company policies:

Under the heading of Gross Misconduct – Serious infringement of Health and Safety rules including transportation of cash/coin.

Under the heading of Serious Misconduct – Use of hand held mobile telephone whilst driving or in control of a Company vehicle.

It is my opinion that the infringement of any company policy in this instant case lies under the Serious Misconduct and not the Gross Misconduct heading.

In reaching a conclusion I totally accept that what the Complainant done on 18th August 2018 was not acceptable. The process followed by the Respondent was flawed in as much as the Complainant was not aware that he was being interviewed as part of an investigation and was not aware that there would be follow-up to this.

My recommendation is as follows:

The Respondent were right in issuing a disciplinary warning. The process followed by the company was flawed.

I recommend that the Final Written Warning remain on his file for a period of six months and not the period of 12 months. This warning should be removed form the Complainant’s record on 18th March 2019.

As outlined above.