Complainant

Respondent

Anonymised Parties

A Driver

Food Manufacturing

Representatives

Fidelma Carron SIPTU Workers Rights Centre

Terry Mac Namara IBEC North West

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-00028720-001

28/05/2019

The following submission was presented by SIPTU on the claimant’s behalf:

The case before you today is in relation to dispute between our member, (the complainant) and his employer, (the respondent) in relation to the issuing of a final written warning.

SIPTU contends that the disciplinary sanction is excessive, and we are seeking that the final written warning should be reduced. The case is referred under the Industrial Relations Acts.

Background:

The complainant is employed by the Company as a milk delivery driver for eleven years in the Northwest area.

On the 21st January 2019 the complainant was involved in an incident at work where he forgot to put on the handbrake of the van, and it rolled forward hitting another vehicle belonging to a member of the public. There was damage caused to both vehicles.

The complainant reported the incident to the respondent, and he was requested to attend a disciplinary hearing on the 4th February 2019 with Mr.SH, National Sales Manager and Mr.MH, HR Operations Manager.

On the 6th February 2019 the complainant was informed that he was being issued with a final written warning for serious misconduct in relation to the incident. The warning was confirmed in writing by letter dated 7th February 2019 and received on the 18th February 2019. copy attached as Appendix 1.

The complainant appealed the disciplinary sanction on the ground of the severity of the sanction by letter on the 22nd February 2019.

An appeal hearing was held on the 6th March 2019 with Mr.S.B., General Manager . The complainant was informed by letter dated the 14th March 2019 that his appeal was rejected, see Appendix 2.

The complainant was requested to attend training following the incident and he attended training with G F Training on the 27th March 2019. A copy of the training report is attached as Appendix 3 which shows that he received a score of 80% (merit).

Subsequently the disciplinary sanction was appealed to the Adjudication Services, copy of the referral attached as Appendix 4.

Union’s Case:

The complainant had a momentary lapse in concentration when he forgot to put on the handbrake on the vehicle. He has never denied that he was at fault, but it was an accident and not deliberate. He reported the incident to management.

At the hearing management referred to two previous incidents in 2017 and 2018. In the incident in March/April 2017 another car hit the driver door of the vehicle as the complainant was closing the door. He was not at fault. In the incident on the 12th November 2017 the complainant was blinded by the sun as he was reversing, and he hit another vehicle. He did not receive any disciplinary sanction for this incident.

The complainant has a clean disciplinary record and to jump to a final written warning is severe in the circumstances of this case. The level of disciplinary sanction issued was not warranted and disproportionate to the incident. There was no intention by the complainant to cause harm, it was an unfortunate accident.

The complainant attended additional training two months after the incident and his score was 80%. In the final assessment most of the marking is 4 “Frequently demonstrated high level of skill” which demonstrates that he is a good driver.

Conclusion:

The incident occurred due to a momentary lapse in concentration. It was an accident, there was no deliberate intent on the part of the complainant to cause any harm. The complainant has a clean disciplinary record.   When all the circumstances of this case are considered the issuing of a final written warning is excessive and unwarranted.

Adjudicator we ask you to find that the disciplinary sanction issued was excessive and to reduce the warning

  At the hearing , the claimant advised that following the incident he went into the service station ; reported what happened and then reported it to his line manager. He asserted that the vehicle moved a very short distance and it was an unfortunate accident. It was submitted by the union that the claimant had admitted he was at fault , that he was normally a good driver and had recorded a score of 80% in the follow up training course.

Introduction

This case concerns a complaint by the complainant, , against his employer , the Respondent, under the Industrial Relations Acts1946 to 2015.   The claimant alleges that a Final Written Warning he received on 06 February 2019 was disproportionate in relation to the wrongdoing that he admitted to. The respondent submits that Final Written Warning was both a fair and proportionate sanction given that in the incident in question the complainant was found to have acted in a neglectful and unsafe manner.

1.0          The Company

1.1          The respondent is located in the North West with Headquarters in Sligo and employs in the region of 700 staff directly and provides jobs for many others in transport, distribution and forestry. Approximately 270 employees are represented by SIPTU, 50 by the Dairy Executive Association and 40 by Unite while the balance are not unionised.

2.0          Background to the Complaint

2.1          The complainant commenced employment with the respondent on 22 December 2008. The claimant was issued with an updated contract on 13 July 2017 and his role was that of a van sales agent on the X run delivering the Respondents products to customers. Copy attached at Appendix 1.

2.2          The Claimant was issued with a written warning for breach of safety rules on 27 January 2017, for driving off a loading area which was on a red traffic light. This warning was issued by Mr.G.G, the supply chain manager. The Claimant was offered the right to appeal the warning and did not do so. Copy attached at Appendix 2.

2.3          The Claimant was involved in another number of incidents as follows in the ensuing period:

a)       €2,500 worth of damage to a rental van in August 2017

b)      Reversed into a car at O’G filling station causing €3.500 worth of damage in October 2017

c)       On 21 January 2019, an incident occurred at T’s   garage where the Claimant failed to put on the handbrake of his van when he disembarked causing the van to roll into a vehicle belonging to a member of the public causing €xxx of damage.

2.4          On 31 January 2019, Mr S.H., National Sales Manager wrote to the Claimant inviting him to a disciplinary hearing. Copy at Appendix 3.

2.5          The disciplinary hearing took place on 04 February 2019, where Mr H, was accompanied by Mr MH, operations Manager and the Claimant was represented by Mr E.H, colleague.

2.6          The Claimant accepted that on 21 January 2019, whilst at T’s in , he had received a phone call and jumped out of the van forgetting to put on the handbrake. During the disciplinary hearing Mr H put to the Claimant some of the other incidents referred to at section 2.3 above and the Claimant responded by saying “if I was perfect then there would be no incidents. You, me, him have insurance for that reason”. The Claimant accepted responsibility for all incidents. Mr.S.H. informed him that the number of incidents were disproportionate compared to other company   drivers, stating that this breach of safety rules was a very serious infringement and that the Respondent puts a high emphasis on Health and Safety. Minutes of disciplinary hearing at Appendix 4

2.7          On 06 February, the complainant was called to a follow-on meeting by Mr.SH in order to communicate the outcome of the disciplinary hearing. The Claimant was informed that he was receiving a final written warning which would stay on his file for 12 months. He was further informed that Mr.EG, Health & Safety manager, would organise refresher driver safety training. Minutes at Appendix 5

2.8          On 07 February the Claimant was issued a copy of the final written warning in writing indicating that the warning would remain on file for 12 months. The complainant was informed that he had a right to appeal this warning within 7 days. Copy at Appendix 6.

2.9          The Claimant appealed the warning and on 22 February 2019, a Mr SB General Manger, invited him to an appeal hearing on 06 March. At the appeal hearing the Claimant was represented by Mr A.S., SIPTU Shop Stewart.

2.10        At the appeal hearing the claimant did not deny the wrongdoing and accepted his role in the accident. However, his appeal was based wholly on the severity of the sanction of a final written warning. Minutes of Appeal Hearing at Appendix 7.

2.11        On 11 March 2019, Mr SB wrote to the Claimant stating that he had reviewed carefully his points of appeal and listened to all representations made on his behalf by his representative, however, he found the decision to issue a final written warning was an appropriate sanction given the circumstances. Copy at Appendix 8.

2.12        The Claimants underwent reassessment and driver training with G Driving School to reemphasis the principals of safe driving as recommended during the disciplinary process.

2.13        On 28 May 2019, the complainant submitted a complaint form to the WRC. Copy at Appendix 9.

3.0          Company Position

3.1          The respondent has a procedural agreement with SIPTU which includes the disciplinary procedure agreed by both parties under section 26. In these disciplinary procedures, breaches of Company or safety rules are categorised as serious misconduct. The procedural agreement also includes policy guidelines concerning safety, health and hygiene under section 34 which states that “everything possible will be done to make the workplace free of risks and any possible hazards should be reported to the relevant manager, Health and safety officer. It is accepted and agreed by the Union that their members undertake to give full support to the Company’s health and safety and hygiene practices”.

3.2          Section 36.1 indicates that “employees must not engage in dangerous practices which might endanger their own or colleague’s safety”. Section 36.3 states that “employees engaging in dangerous practices shall be dealt with under disciplinary procedures or serious misconduct clauses depending on the gravity of the situation”.

3.3          The Respondent submits that the issue of a final written warning to the complainant was reasonable and proportionate given the serious of the incidents that Claimant was responsible for in relation to the safe operation of his vehicle and prevention of accidents.   The Respondent would rely on the Labour Court findings in the case of Waterways Ireland and Worker, LCR 22096/2019 where the Court acknowledged that “the employer, having regard to matters of health and safety, has submitted in fact that the matter before the Court is one arising from the attempts of the employer to enhance the working environment of the worker having regard to his health and safety.”   In this instance the court found that it was not unreasonable of the employer to impose a significant sanction in response to the workers refusal to adhere to health and safety requirements. in the case at hand, the respondent had given the claimant significant latitude in that several accidents had occurred since his written warning issued in 2017, and his behaviour represented a significant breach of health and safety requirements in terms of his driving duties.

3.4          The respondent also relies on the findings of the WRC Adjudication Officer in the case ADJ-00022123 Supervisor –v- a Steel Galvanised Company where in response to an appeal of a final written warning the Adjudicator found that they did not recommend any change to the sanction applied and that on balance found that “the disciplinary measure was not disproportionate to the level of potential hazard created by the claimant” and that such measures were intended to act as a deterrent from ever again putting himself at risk of injury. The Respondent submits that they have confidence that the serious nature of the disciplinary sanction coupled with the retraining provided subsequently would act as a preventive measure to the claimant’s previous poor record in terms of accidents and breaches of health and Safety issues concerning his driving duties.

As a result of the foregoing we would ask that the Adjudicator find in favour of the Respondent.

At the hearing , the respondent submitted that it was an employee of the service station who reported the accident to the respondent and not the claimant. It was submitted that the respondent was obliged to treat the accident as a serious matter – the ultimate outcome potentially involved a considerable cost for the respondent. Both the National Sales Manager who conducted the disciplinary hearing and the General Manager gave evidence of their involvement in the disciplinary process. Both emphasised the company’s commitment to Health & Safety and it was suggested that if someone had been sitting on the wall when the van moved , there could have been serious damage or indeed loss of life. The respondent’s representatives contended that the claimant had been given the benefit of the doubt with respect to other incidents and submitted that alternative sanctions were considered but were not deemed appropriate.

I have reviewed the submissions made by the parties and the authorities relied upon by the respondent. I have also considered the respondent’s records of the meetings that took place during the disciplinary process and I have noted that the claimant accepted the accuracy of said records .I further note that at the disciplinary meeting of the 4th.Feb. 2019 , the claimant took full responsibility for all incidents “except the second incident…”.In light of the foregoing I find that the respondent’s assertion that the number of incidents the claimant was responsible for was disproportionate to his colleague drivers to be credible .In these circumstances and having regard to the Health & Safety provisions of the procedural agreement with the union , I find that the respondent acted reasonably and consequently recommend against the claimant.