Complainant

Respondent

Anonymised Parties

A general operative

A baggage handling company

Representatives

Peter Glynn SIPTU

Local Management

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-00031694-001

21/10/2019

The complainant has been employed by the Respondent as a general operative since 23 May 2007.

This complaint was received by the Workplace Relations Commission on 21 October 2019.

On 27 January 2019 the complainant was witness to what he perceived to be a breach of the respondent’s Health and Safety policy and duly reported it to the respondent’s head office early the following day, 28 January 2019. The complainant was apprehensive about reporting the matter locally, as the perpetrator was the complainant’s direct supervisor, hence the escalation to head office. The complainant contends that he subsequently received correspondence from head office, whereby they committed to investigate the matter.

The complainant was involved in another, separate incident later that day, whereby he himself was perceived to be in breach of the company’s Health and Safety procedures. This matter was not reported at the time it occurred and the complainant is of the belief that it was only brought up retrospectively, in retaliation for his disclosure regarding his supervisor  

The complainant claims that during the course of his work the following day, 29 January 2019, he was approached and threatened by another supervisor for reporting his colleague the previous day. The supervisor further advised that he would be reporting the complainant for the second incident, in which it was alleged the complainant did not adhere to the Health and Safety policy.

Following this interaction, the complainant spoke to the manager on duty in relation to the threatening behaviour that he felt he had been subjected to. The complainant resumed working but when the supervisor continued to attempt to intimidate him, he went home early and composed and sent a written statement to the manager he spoke to earlier. In the statement the complainant describes how the supervisor told him that he would be reporting him for breach of Health and Safety policy the previous day and started to excessively monitor his work performance to the extent that the complainant felt that the supervisor was trying to catch him out. He also asserts that the supervisor had wanted him to call into his office at the end of the shift to make a statement on the breach. At this point the complainant spoke to his line manager and told him what had happened, said that he was feeling threatened and unwell and excused himself and went home early.

On 31 January 2019, the respondent wrote to the complainant, requesting him to attend an investigation meeting in relation to the Health and Safety incident that he himself was involved in. The meeting was scheduled for the following day, 01 February 2019. The complainant was accompanied at the investigatory meeting by a work colleague. After the meeting the complainant was asked to sign off on the minutes of the meeting, which he refused to do as he did not feel that they accurately reflected the meeting.

On 08 March 2019 the complainant received correspondence from the respondent notifying him that the matter was to be escalated and that he was requested to attend a disciplinary meeting, scheduled 11 March 2019. Included with the correspondence was the final report from the investigation meeting and some hand-written witness statements.

Due to operational requirements, the meeting could not go ahead as planned and was rescheduled for 15 March 2019. However, the complainant did not attend as his union representative was unavailable to accompany him on that date. The disciplinary meeting went ahead in his absence.

On 09 April 2019, the complainant received a letter from the respondent detailing the outcome of the disciplinary meeting, whereby the complainant was found to be in breach of Health and Safety procedures and issued with a final written warning. He was also notified of his right to appeal the decision and outlined the appeals process. The complainant asserted his rights to appeal through his union representative, but the appeal hearing was not scheduled. While the complainant was awaiting a date for appeal, he received a written statement from another supervisor verifying his account of events.

Throughout this procedure, the complainant has utterly refuted the allegations levelled at him and claims that he was simply following instruction on the night in question. He is of the firm belief that the complaint against him was fabricated and made in retaliation for a disclosure he made in good faith after he witnessed a Health and Safety infringement committed by a supervisor. This series of events happened at a very volatile time, in the aftermath of a tragic workplace accident in which a colleague lost his life. The complainant is very aware of his Health and Safety obligations in the course of his work and demonstrated this further when he provided evidence of his reporting of another incident that occurred while his own case was being investigated. He was commended for his diligence by the group’s global Health and Safety program leader in this regard.  

Union Argument

1.       The respondent was in breach of natural justice and acted unfairly and unreasonably in that he did not give weight to, or proper consideration to, the mitigating circumstances.

2.       The respondent did not utilise the agreed company/union procedures for dealing with the investigation and imposition of sanction nor were they fully compliant with S.I. 146 of 2000.

3.       There was a serious and fundamental unfairness in that the claimant was not made aware by the respondent that an incident report had been submitted on the night in question. The claimant was thus denied his rights under natural justice in that this was not put to him in the disciplinary process despite being prejudicial to his interests.

4.       It is well established in this jurisdiction that the application of rules of natural justice and fair procedures is all the more important in the context of allegations of misconduct:

Hickey v Eastern Health Board [1991] 1 IR 208; Connolly v McConnell (SC) 1983.

Conclusion:

The complainant is requesting the Adjudicator to recommend that this complaint is well founded. That the employer expunges all documentation pertaining to the incident and that they also pay a compensatory award for the unnecessary stress and anxiety that this sanction has caused.

The respondent acknowledged that the failure to grant a timely appeal hearing to the complainant was an oversight on their behalf, owing to the appropriate manager being on annual leave at the time of sending. They did, in fact, offer to hear the appeal towards the end of October 2019. This was not taken up by the complainant, as he stated that by then it was too late, and the WRC complaint was in motion at that stage. The respondent apologised unreservedly for the oversight.

The respondent did not contest the complainant’s testimony. Notwithstanding that they did not have sight of the complainant’s submission prior to the hearing, they stated that they had no reason to doubt his version of events and accepted it in its entirety. They re-iterated their apology for the oversight in relation to the disciplinary appeal and agreed to expunge the incident/sanction from his personnel record.

The complainant sought to appeal a disciplinary sanction imposed on him during a disciplinary hearing held in his absence. He contests the circumstances surrounding the allegations which he faced and feels that he was not afforded fair procedure to make a case for his defence. The complainant believes that the allegation of breach of Health and Safety procedures that was levelled at him was fabricated and made in direct retaliation for his reporting of a prior infringement perpetrated by his supervisor.

As there was no opposing case made by the respondent, I must conclude that the complainants account of what occurred to be accurate in its entirety. The respondents concurred with that viewpoint and accepted their short fallings in the discharge of the disciplinary process. They have apologised unreservedly and agreed to expunge the incident from the personnel record of the complainant. I recommend that the complainant accept this resolution in this matter.

In relation to the complainant’s request that he be financially compensated, I do not find that compensation is appropriate in this case as no evidence was produced to suggest that he was negatively impacted financially.

As above