ADJ-00025311

Complainant

Respondent

Anonymised Parties

Cash in Transit Driver

Security Transport company

Representatives

SIPTU

IBEC

Act

Dispute Reference No.

Date of Receipt

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

CA-00032045-001

07/11/2019

The Worker said that he was issued with a disciplinary sanction twice that he considers unfair. The Employer said the Worker failed to report into work and on his return to work was aggressive to a branch manager and failed to follow instructions.

The Worker commenced employment with the Employer on 7 October 2007 as a cash in transit driver. He said that on Friday 21 June 2019 he was ill and unfit for work. At 6.10 am he telephoned the landline at his workplace and left a message to report his absence. The next contact he made was Tuesday 25 June to inform his employer that he would return to work the following day, a colleague took the message and it was his understanding that it was passed on. This, he claims, is the custom and practice and the usual procedure followed for situations when someone is out sick. The Worker said that when he returned to work at 8:20am the following day to prepare for his shift, he was met with a work colleague, Mr. A, who he said was “hysterical”, and repeatedly told him to go up directly to see the branch manager Mr. B. The Worker said that he repeatedly told Mr. A to “stop shouting at him”. He said Mr. B appeared and said he wanted to see him in his office and a heated exchange started. The Worker said that Mr. B suspended him with immediate effect and contends that this was a pre-determined outcome. He said that Mr. B had already made his decision without allowing him respond. The Worker said that the suspension is a form of discipline in the Employer’s own disciplinary policy. The Worker said while he was on paid suspension, he was invited to an investigatory meeting on 4 July 2019 to investigate “following a report that you failed to comply with the absence policy as outlined in [employers] policies and procedures. There is also a report of spontaneous aggression which I will also look to investigate”. The Worker said that the Employer was preparing to investigate although it had already sanctioned him by suspending him. The Worker points to page 7 of the Employer’s company booklet dealing with disciplinary matters where at Stage 5, it lists “Suspension” as a possible outcome of a disciplinary meeting. The Worker said that Mr. C conducted the investigatory meeting, issued a report and recommended disciplinary action. The Worker said that Mr. C was tasked with the investigation of the situation but stepped outside of that role and chose to input his personal opinion which was unfair and unreasonable. The Worker went on to claim that he felt the investigation meeting and report was unreasonable. The weighting that Mr. C placed on particular evidence in that investigation meeting were one sided and the lack or omission of the Worker’s position is evident throughout. The Worker said that the investigation was a complete farce, bias, unfair and seriously flawed. The disciplinary hearing was chaired by Mr. D, head of regional operations, on 23 July 2019 where the Worker was issued with a final written warning. The Worker said that Mr. D did not agree that the suspension was contrary to its own policy. The Worker also highlighted in the Respondent’s own handbook the need for a doctor’s certificate, which must be obtained within 3 days. He clarified a typographical error in the Employer’s information notice and said that this would be corrected and reissued with the correct wording to staff. The Worker said that he appealed that decision but was not successful. The Worker said that in effect he was twice punished and sanctioned for the same matter in that the suspension and written warning are both possible outcomes in the disciplinary process. He said he got both and now wishes that the final written warning be expunged from his record.

The Employer specialises in secure transportation and storage of cash and valuables. The Worker is employed there since 2007. The Employer said that it operates a comprehensive disciplinary procedure, which was agreed with the recognised trade union. The Employer said that the Worker was absent from work on Friday 21 June, Monday 24 June and Tuesday 25 June. The Employer said that he did call in on Friday 21 June to report that he was sick. However, he did not contact his employer on the 24 or the 25 June. The Employer said that because of the nature of its business, there is heightened security around its staff and their safety. It said that it made numerous efforts to contact him while he was absence, but he failed or chose not to respond. The Employer wrote and couriered a letter to him on Tuesday when he failed to turn up for work and sought him to contact Mr. B immediately. The Worker on receipt of this letter, made contact with it, leaving a message that he was out on sick leave and would be returning the following day. The Employer said that when he returned to work on the morning of 26 June, he was abusive to Mr. B as he tried to address him for not contacting his work on 24 and 25 June as he was required to do. Mr. B placed him on paid suspension pending the completion of an investigation. The Employer said that an investigation was set up for 4 July 2019 and it complied fully by its internal policy and procedure which is fully in line with the best practice set out in SI 146 of 2000. The investigation meeting concluded, and the investigator made a recommendation for disciplinary action for (i) failure to comply with absence policy and ignoring efforts of contact from Mr. B, (ii) failure to contact Employer while out sick, (iii) unacceptable aggressive behaviour toward Mr. B and derogatory comments about a fellow worker, and (iv) ignoring an instruction from a branch manager to leave the premises. The Disciplinary meeting was held on 23 July and the Chair gave the Worker an opportunity to make any amendments to the records gathered to that point or to add anything further. The Employer said that the Worker informed the Chair that he had since apologised to his work colleague regarding the derogatory comments made. The Worker was issued with a final written warning following the disciplinary meeting by letter dated 7 August 2019. The Worker was given the opportunity to appeal, which he did. On 11 September a meeting was held where again he was offered to present his case and add to the records presented. The outcome of the appeal was communicated to him on 23 September 2019. The decision from the appeal was to confirm and uphold the decision to impose a final written warning. The Employer said that it followed its disciplinary procedure accordingly, and conducted a full, impartial and fair investigation, disciplinary and appeals process which was in line with the principles of natural justice and fair procedures.

I have considered all the facts of the case presented to me in this dispute and I determine that the main areas that remain in dispute between the parties is what the Worker claims to have been sanctioned twice by the Employer for the disciplinary matters. I am satisfied that there was an altercation between the branch manager and the Worker on his return to work. I am satisfied that tempers were high, and it could have escalated to be possibly much worse. I note Mr. B tried to take control of the matter as branch manager and asked the Worker to leave. I deem that was in the best interests of everyone. I note that was followed up with confirmation that he was being placed on paid suspension while the matter was being considered. I have noted the Employer’s “Absence policy” and note in particular the “Absence Reporting Procedure”, where I see that the responsibility is with the employee to notify the manager on duty immediately on becoming aware of their inability to work and in the event that an employee remains unable to work due to an illness for a longer period of time than originally anticipated … and advise of the expected duration for same”. Finally, I note that the policy says that “it’s the employee’s responsibility to ensure that the supervisor on duty is contacted as excuses that messages were not passed on will not be acceptable.” I have noted the Employer’s “Disciplinary Policy” and note the non-exhaustive list of what the Employer views as disciplinary offences and they include, inter alia, Unauthorised absence; failure to observe Company procedures; abusive behaviour; refusal to follow a reasonable instruction issued by a manager or supervisor. The policy also sets out the investigation procedure to be followed and at paragraph two it sets out that where it is believed that the matter to be investigated involves serious misconduct, the employee may be immediately suspended from work on full pay and contractual terms.

Finally, I note the possible outcomes of a disciplinary meeting and these include

[…]

Stage 4 – Final written warning,

Stage 5 – Suspension, [ a suspension without pay]

Stage 6 – Dismissal.

The Worker has stated that he was reprimanded twice for the same event, namely a final written warning (stage 4) and suspension (stage 5).

I have considered the facts presented and I am satisfied that the Worker failed to keep his Employer up to date regarding his absence and because of the nature of the business this raises security concerns. I am satisfied that on his return to work he got involved in an altercation with Mr. B. I accept that it became very heated and as noted above it could have been worse. Whatever the circumstances that triggered that, I note that Mr. B suspended the Worker. That was confirmed in writing and the case was then sent for investigation as set out in the Employer’s Disciplinary Policy. I deem that all of this was handled within the parameters of the Employer’s policy correctly. The ‘paid suspension’ is provided for in cases of serious misconduct. However, that is distinct from stage 5 suspension which is one of the possible outcomes of a disciplinary meeting, which is unpaid and is a sanction. I note the disciplinary process was conducted in line with the Employer’s policy and I cannot agree with the criticism that the investigation was “a complete farce, bias, unfair and seriously flawed” as suggested by the Worker. I see no evidence to support that. This dispute hinges on the importance of the Worker and his Employer to remain in contact when he was expected to report to work and the subsequent escalation of bad feeling between the parties on his return to work. I am satisfied that the Employer acted fairly at all times. Accordingly, I recommend that the Worker accept the outcome of the disciplinary process.

I recommend that the Worker accept the outcome of the disciplinary process.

Industrial Relations Acts ­– sick absence - disciplinary process.