Complainant

Respondent

Anonymised Parties

A Delivery Driver

A Retail Supermarket

Act

Complaint/Dispute Reference No.

Date of Receipt

Dispute seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00028024-001

29/04/2019

The worker has been employed by the employer as a Deliver Driver since December 2014. The dispute as referred to the Workplace Relations Commission (WRC) on 29th April 2019 relates to the worker being removed from driving duties as a result of a disciplinary process. The worker is claiming that the employer’s actions throughout the disciplinary process and the unjustified disciplinary sanction he received are part of a broader campaign of harassment against him.

The Union (on behalf of the worker) is claiming that the removal of the worker from driving duties in 2017 and a First Written Warning received by the worker in January 2018 is unfair as it was imposed after a flawed disciplinary process. The Union outlined that the investigation into worker’s alleged failings in March 2017 was investigated by a member of management whom the worker had previously made a complaint against. The Union stated that the worker voiced his concerns in relation to the impartiality of the investigator, but his concerns were ignored.

The Union stated that the worker was removed from Driving duties in 2017 amid concerns relating to his performance and on the basis of unsubstantiated claims that he had not completed his assigned duties in line with the training he received. After a period of sick leave for work related stress the worker attended a reconvened investigation where the Trade Union sought clarity in relation to a number of issues including procedures that should be followed by Drivers when they encounter difficulties in completing their deliveries. The Union contends that the employer did not provide the clarifications as sought and had predetermined that the matter would be progressed to a disciplinary process. The Union contends that the employer failed in its duty to conduct a “full, thorough and efficient investigation”. The Union stated that when the matter was progressed to a disciplinary process, an email from the employee relations department dated 26th October 2017 (obtained as part of a data access request) seeks clarity on certain issues prior to the disciplinary process taking place. The Union contends that it too had sought clarity on the same issues at the investigation stage of the process, but clarity had not been forthcoming. It stated that no clarity was received at all on these issues prior to the worker being issued with a First Written Warning in January 2018. The Union stated that the process leading to issuing of the First Written warning was flawed and the appeal of the disciplinary sanction was merely a “box ticking exercise” which upheld the issuing of the warning.

The Union further stated that the worker was required to attend a driving assessment on the basis that it was Company Policy and was required for insurance purposes given the length of time that the worker had not been assigned to the driving role. The Union stated that despite requests for retraining prior to the driving assessment, this was not provided, and the worker was unsuccessful in the reassessment and therefore not permitted to return to Driving duties.

The Union contends that the employer did not adhere to its own procedures in relation to its handling of the disciplinary process and did not afford the worker his rights in terms of representation at the investigation stage of the process. The Union also stated that the employer’s policies provide for fair procedures and natural justice and refer to corrective measures rather than punishment, yet the worker received neither fair procedures nor natural justice and was punished before the investigation/disciplinary process had taken place. The Union contends that the employer’s actions throughout the process are a clear indication of a continuous campaign of unfair treatment and harassment against him.

The Union is seeking that the written warning be expunged from the worker’s file and that he be re-instated to Driving Duties immediately with the payment of all monies that he lost as a result of being unfairly placed in the Store based role and that he be compensated as a result of how he was treated by the employer. The Union is also seeking that the parties be directed to engage in workplace mediation in an attempt to rebuild the working relationship.

The employer stated that the worker was removed from driving duties in 2017 as a result of perceived performance issues while an investigation process was ongoing. The employer stated that the removal of the worker from driving duties was not part of the disciplinary process but was implemented as the employer had legitimate concerns in relation to the workers performance and reserved the right to remove the driver from those duties at that time.

The employer stated that by the time the investigation and disciplinary processes had concluded in June 2018, the worker had not been engaged in a Driving role for a considerable number of months as well as having a significant level of absence from work. The employer stated that as a result, it was necessary to have the worker’s driving reassessed. The employer stated that the worker was unsuccessful in completing the driving assessment on 16th March 2018, and therefore could not return to duties as a Delivery Driver and would remain in the Store based role of Customer Assistant on the appropriate terms and conditions pertaining to that role.

The employer noted that at the date of the referral of this complaint to the WRC, the disciplinary sanction of a First Written Warning imposed on the worker in January 2018 as part of the disciplinary process had expired and therefore the issue is moot.

The employer confirmed that a grievance was also lodged by the worker on 31st July 2018 in relation to his new role within the organisation and the changes that occurred to his terms and conditions of employment. The respondent contends that the complainant, at a grievance meeting held on 27th August 2018, sought to be returned to his duties as a delivery driver yet this was not possible as he had not been successful in the driving assessment conducted on 16th March 2018. The employer confirmed that the grievance outcome was communicated to the worker on 1st November 2018 and his grievances were not upheld. The employer stated that the worker appealed the outcome and in the appeal decision dated 24th January 2019, the original grievance outcome was also upheld.

The employer contends that there is no merit in the worker’s complaint, and it should be dismissed.

The parties furnished written submissions at the adjudication hearing. The worker’s submission related to the investigation/disciplinary processes which commenced in and around March 2017 following concerns relating to the worker’s alleged failure to carry out his delivery duties. Prior to the completion of the disciplinary process in June 2018 (which took approximately 16 months) the worker, as a result of an unsuccessful driving assessment, was no longer in a position to carry out his role as a Delivery Driver. I also note that the First Written Warning occurring as a result of the disciplinary process expired in July 2018.

On the 31st July 2018, the worker submitted a grievance in relation to the Customer Assistant role that he now occupies. The employer’s submission at the adjudication hearing focussed on the grievance submitted by the worker in relation to the changes to his terms and conditions of employment relating to his new role. Having reviewed the documentation relating to the grievance, I accept that the employer concluded all aspects of the grievance including the appeal within a reasonable time frame of approximately six months and I do not find anything procedurally deficient in the employer’s handling of the worker’s grievance.

A key element to this dispute is the removal of the worker from his Delivery Driver Role in 2017. The employer stated that it was not a disciplinary sanction and that it reserved the right to remove the driver from his role amid concerns relating to his performance. It is difficult to understand how removing someone from their role, placing them into a role with less earnings, different hours of attendance and other reductions in terms and conditions of employment could be seen as anything other than a disciplinary sanction. In circumstances where this was done prior to any investigation/disciplinary process being carried out, leads me to conclude that it was indeed unfair, inappropriate and at variance with the principles of fair procedures and natural justice.

The worker was absent for a significant length of time throughout the disciplinary process which caused inevitable delays to its completion and there were also some issues of unavailability on the part of the employer which caused further delays. It is most unfortunate that, by the time the disciplinary process had concluded, the worker was no longer deemed qualified to carry out the Delivery Driver role having unsuccessfully completed the Driving assessment. However, while I accept the initial unfairness in removing the worker from the Delivery Driver role, I cannot, as matters currently stand, recommend that the worker be returned to that role forthwith as requested by the Trade Union.

In all of the circumstances of this dispute and having considered the submissions of both parties, I recommend as follows:

Delivery Driver Role

The worker should be provided with the required re-training in relation to returning to his role as a Delivery Driver. Following the required training and on successful completion of the Driving Assessment, the worker should be returned to the role of Delivery Driver on a six-month trial basis subject to monthly reviews of his performance in the role. On successful completion of the six-month trial period, the worker should be returned to the Delivery Driver role permanently.

Initial Removal from Driving Duties

I find that the removal of the worker from driving duties in 2017 before any investigation/disciplinary process had taken place was both unfair and punitive. In considering the totality of this issue, I have considered the worker’s alleged actions in March 2017, the delays caused by the level of the worker’s absence throughout the disciplinary process and the delays that occurred on the employer’s part in completing that process. Having considered the totality of the matter including the request for compensation and the repayment of the difference in wages between the two roles, I am of the view that the worker should receive compensation. I consider total compensation in the amount of €3000 to be fair and reasonable.

Other issues

The Union also sought that the First Written warning be expunged from the worker’s personnel file. As the warning expired in July 2018 and in line with Labour Court Recommendation No: LCR21807, there should be no ambiguity in relation the status of the warning once the timeframe for its existence has passed. On that basis I recommend that, if it has not already been done, that the warning be expunged from the worker’s personnel file immediately.

In relation to the Trade Union’s request that the parties be directed to enter into mediation in an effort to rebuild working relationships, I note that Mediation is a voluntary process requiring both parties to agree to participate. With that in mind, I do not propose to recommend on that issue. If mediation is something that the worker would like to explore, the suggestion should be put to the employer for consideration.

Disciplinary procedures, Grievance procedures