Complainant

Respondent

Anonymised Parties

{A General Operative}

{An Employer}

Representatives

Tanya Maksimova SIPTU

Peter Flood Ibec

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-00029206-001

20/06/2019

The Complainant has been employed with the Respondent since 9th April 2007.

The Complainant objects to the disciplinary sanction of demotion to a lower grade and changed location which is different to a colleague who received a verbal warning for making a similar mistake. The Respondent reviewed the CCTV without the Complainant’s permission and against their own procedures.

The Complainant was unaware of his mistake and admitted this. The CCTV was reviewed on the basis of a new policy which was not consulted or given to the employee’s previously. The Respondent concluded the action of the Complainant were unsafe and the reason for mislabelling was due to the Complainant using his mobile phone which was prohibited. The Complainant was using his mobile for weights and due to particular personal circumstances.

The procedures were unfair as the Complainant was not notified he was accused of gross misconduct in advance of the disciplinary meeting. The Complainant was subsequently demoted and his appeal was unsuccessful.

The sanction has no fixed expiry date, the Complainant has a continuing loss of €20 per week and is disproportionate. He is seeking to be reinstated into his former role.

A serious incident occurred in where a customer’s product shipment was contaminated with 63kg of different product in 2018. There was a difficult process to establish which part had the wrong product and replace this for the customer. The Respondent failed to achieve delivery and quality performance and has received no further orders. There was a loss of product and cost.

An investigation was conducted to establish how the items was incorrectly labelled. The Complainant was unable to offer any reasoning to allow the company to take corrective action. The Complainant objected to the use of CCTV which was rejected by the investigator who required this to establish the facts. The CCTV showed the Complainant moving the item while looking at his mobile phone, not using proper material handling equipment in breach of practice or paying care to his co-workers.

The Respondent determined the Complainant’s actions were gross misconduct, however due to mitigation the dismissal was reduced to demotion and the Complainant was transferred to another department. The Respondent does not agree it treated the Complainant differently to another employee as they were different incidents. The Complainant has a history of formal warnings for poor performance and in relation to return to work.

I have carefully considered the submissions of the parties.

A serious incident of mislabelling occurred which impacted the reputation of the Respondent with a client. The incident was investigated. The Complainant was notified of the outcome of the investigation and consequent disciplinary issues. There was financial loss to the company.

There was a finding of gross misconduct against the Complainant who was demoted. The incident took place in October 2018 and the Complainant has ongoing financial loss.

In light of the time that has now passed, I recommend the Respondent consider any application by the Complainant for a higher grade general operative role favourably.

I recommend the Respondent consider any application by the Complainant for a higher grade general operative role favourably.

Disciplinary sanction, mitigation, demotion