Complainant

Respondent

Anonymised Parties

Warden

Dog Warden Service

Representatives

Barnaba Dorda SIPTU

John Barry Management Support Services (Ireland) Ltd

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-00032662-001

03/12/2019

The complainant is employed as a warden with a dog pound and warden service. He commenced employment on 01 September 2015. In August 2019 he refused to work on-call and overtime duty. He received a disciplinary sanction of a verbal warning. He appealed the verbal warning but was not successful in his appeal.   He submitted his complaint to the Workplace Relations Commission on 03 December 2019.

The complainant’s union representative presented a submission. The complainant has been employed by the respondent since 2015 as a full-time warden. In addition to his normal hours he is asked to work overtime, from time to time.   Shortly after commencing employment he was asked to be ‘on-call’ once every six weeks. He is not paid to be on-call but, if he is called out to collect a dog and bring it to the respondent’s shelter he is paid a special hourly rate for the time worked.

Due to his family circumstances the complainant was not available to work on specific weekends.   Consequently, there were times when he was asked to work overtime, but due to his family circumstances, he refused.   This was accepted by the respondent and no disciplinary issue arose.

In August 2019 the complainant along with two other employees refused to be on-call.   Around the same time he was requested to work weekend overtime. He refused to work overtime due to his family circumstances.

Following the complainant’s refusal to be on-call and to work the weekend overtime he was called to an investigation meeting. He was then asked to attend a disciplinary meeting. The disciplinary meeting was to have been chaired by one manager but was in fact chaired by another manager. The complainant provided an explanation as to why he had refused to be on-call and to work overtime that weekend. The disciplinary meeting resulted in the complainant being issued with a verbal warning.

The complainant appealed the verbal warning. He was not successful in his appeal. The letter of 25 September 2019 recorded that the complainant had been issued with a formal verbal warning regarding his refusal to carry out on-call duties and overtime as required by the company. The record of the verbal warning was to be placed on his file for a period of six months.

The case presented is that the verbal warning was not warranted for the following reasons:

The respondent was aware that due to the complainant’s family circumstances he was not available to work overtime on specific weekends. The complainant was available to work overtime provided it was not scheduled on the specific weekends when he had family commitments.   This had not presented any problem for the respondent between 2015 and August 2019.

The complainant and two other employees refused to be on-call in August 2019. The refusal arose from the fact that there was no contractual obligation to be available for unpaid on-call duty. There is a payment for hours actually worked when called out. The complainant and one other employee were disciplined for withdrawing from the on-call arrangement, but the third employee was not. This showed a lack of consistency in the respondent’s approach to dealing with the issue. It was noted that since the investigation meeting the complainant has worked on-call duties under protest.

Considering the above the union representative requested a recommendation that the verbal warning be removed from the complainant’s file.

The respondent’s representative presented a submission. The respondent operates a dog pound and it provides a dog warden service to local authorities. The complainant is employed as a dog warden and his duties include assisting in the capture of dogs. The complainant’s normal working week is five days, Monday to Friday.

As one of six wardens the complainant has provided an on-call service at weekends since he commenced employment in 2015. In August 2019 the complainant refused to be on-call because it was not in his terms and conditions of employment. The respondent company advised him that it had been normal practice for on-call cover to be provided by the wardens.

In and around the same time as the complainant refused to be on-call he refused to work overtime.   The refusal was stated to be because of family circumstances. However, on investigation it transpired that the said family circumstances had existed since 2008 and they had not previously caused the complainant any difficulty in working overtime. During the investigation it became clear that the complainant had family commitments on some Sundays, but he would be able to work on Saturdays.

The respondent noted that the complainant was familiar with the company grievance procedure but at no time had he raised a grievance about the on-call arrangement. As the complainant agreed to work the on-call arrangement and would make himself available to work overtime on Saturdays it was decided that he would be given a verbal warning.

The respondent states that the on-call arrangement is a well-established practice in the business.   The complainant did not raise a grievance about the operation of the on-call arrangement before deciding to refuse to be available for on-call duty. This is an issue of an employee refusing to comply with a reasonable instruction. If an employee has a grievance they should carry out the instruction, under protest if necessary, and use the company grievance procedure.

The respondent reject the claim that employees were treated differently. The third employee referred to by the complainant had not refused to work the on-call arrangement.

The respondent submits that the action taken was reasonable and proportionate in the circumstances.

This dispute concerns a decision to issue a verbal warning to the employee for refusal to make himself available for on-call duty and refusal to work overtime. Although the two issues arose in and around the same time in August 2019, there are different background circumstances to each, so I have considered them separately. A copy of the letter of 25 September 2019 confirming the verbal warning was provided.

On-call Duty

It is accepted that on on-call arrangement has been in operation for many years. The employees are not paid a payment for being on-call but if they do receive a call out they are paid for the hours they work. The complainant has worked the on-call arrangement since shortly after he commenced employment in 2015. In August 2019 the employee and some colleagues refused to operate the on-call system on the basis that it was not a contractual obligation as it was not included in their written employment contract.

I was informed at the hearing that the union has referred a collective issue about the on-call arrangement to the Workplace Relations Commission conciliation service. That is a separate issue and does not require any further discussion in this recommendation.

It was clear at the hearing that the employee was unhappy with the on-call arrangement, but he had not raised a grievance with his employer before refusing to be on-call in August 2019. The correct approach to dealing with any employment issue is to use the grievance procedure or to engage the union to make representations to the employer about the relevant issue. It is not acceptable for employees to unilaterally withdraw their co-operation with a long-established work arrangement. The employee indicated that he is now operating the on-call arrangement, under protest, while the matter is being pursued by the union. Where the employee had unilaterally withdrawn from a long-standing work arrangement, whether in his written contract or not, without raising any grievance with the employer, I accept it was reasonable for the employer to investigate the matter, hold a disciplinary meeting and issue a verbal waring.

Overtime

The employee had worked overtime at weekends when required since he commenced employment. He had made the employer aware of his family circumstances which at times restricted the days he was available to work overtime.   During the investigation, and at the hearing, the employee provided details of his family circumstances.   The employer accepted the employee’s explanation about his unavailability for overtime on Sunday. The employee was available to work on Saturday.   The employer accepted the explanation. That being so, I am of the view that the letter confirming the verbal warning should not have referred to a refusal to carry out overtime.

Dispute Resolution

Where an employee takes it upon himself to withdraw from a long-standing work arrangement, without raising any grievance or complaint, it is reasonable for the employer to investigate and if appropriate impose a disciplinary sanction. The fact that the on-call arrangement is not in the employee’s written employment contract is not relevant. It was a long-established work arrangement and any issue concerning that arrangement should have been raised through normal procedures.

In this case the employer issued a verbal warning, the lowest level of disciplinary action.   Unfortunately, having accepted the explanation about the overtime issue, the employer included this issue in the verbal warning. In my opinion there were errors on both sides in this dispute. The employee in taking the action he did in relation to the on-call system and the employer in including the reference to overtime in the verbal warning.

The employee has agreed to work the on-call arrangement, under protest, pending the union referral of the arrangement to conciliation. The employer has accepted the employee’s explanation about availability for overtime in the context of his family circumstances. To resolve this dispute in a constructive manner and achieve a better working relationship I recommend;

1) The employee gives an undertaking that in future he will follow normal procedures to try to resolve any employment issues he may have, either through the employer’s grievance procedure or through representation to the employer by his union.

2) If the employee is prepared to give such undertaking then the employer should withdraw the verbal warning and remove all reference to it from his file. If the employee is not prepared to give the undertaking as above the employer should amend the verbal warning to remove the reference to overtime.

Having carefully considered the submissions and to resolve this dispute in a constructive way I recommend the following:

1) The employee gives an undertaking that in future he will follow normal procedures to try to resolve any employment issues he may have, either through the employer’s grievance procedure or through representation to the employer by his union.  

2) If the employee is prepared to give such undertaking then the employer should withdraw the verbal warning and remove all reference to it from his file. If the employee is not prepared to give the undertaking as above the employer should amend the verbal warning to remove the reference to overtime.

Disciplinary Action

Verbal Warning

On-call