ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00026562

Parties:

Dispute/Complaint:

Date of Adjudication Hearing:  08/12/2020

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This industrial dispute pursuant to Section 13 of the Industrial Relations Act 1969 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 15th January 2020 along with a complaint of penalisation pursuant to Section 28 of the Safety, Health & Welfare at Work Act 2005, referred under Section 41 of the Workplace Relations Act 2015.  Following delegation to me by the Director General, I inquired into this dispute and complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a remote hearing on 8th December 2020 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designates the WRC as a body empowered to hold remote hearings.  There was consent by both Parties to the remote hearing and by the Employer / Respondent to adjudication on the industrial dispute.  The Worker / Complainant was assisted by Stephen McGowan, Transport Training and Compliance, and the Respondent was represented by Ignatius Lynam, LMCS Management Consultants.  All evidence and documentation submitted has been taken into consideration.

Background:

The Worker / Complainant works 39 hours a week as a HGV Truck Driver for the Employer / Respondent and earns €572.52 gross weekly.  Both this dispute and complaint arise in circumstances where he was subject to a disciplinary process and issued with a verbal warning which was increased to a written warning on appeal.  He maintains that both the process and sanction were unfair and although the warning has since expired, he seeks to have it expunged from his employment record / file.  He also maintains that he was penalised under the Safety, Health and Welfare Act 2005.  The Employer / Respondent stands over the process and maintains that there was no penalisation.

CA-00033796-001 – Dispute regarding Disciplinary Process & Sanction

Summary of the Worker’s Case:

The Worker outlined the background circumstances giving rise to this dispute.  He confirmed that he was employed by the Employer for the past eight years as a HGV Lorry Driver.  On Friday 15th November 2019, he received a text message from his Line Manager, Mr A requiring him to stay back on the following Monday 18th November 2019 for a meeting with the Production & Logistics Manager, Ms B.  He met with both Managers as requested and Ms B informed him that a report for the Transport Department had been generated based upon routes, he had driven spanning a time-frame from 24/09/2019 until 05/11/2019.  Ms B also informed him that she was undertaking an investigation in relation to time and mileage on these routes at the instigation of Mr A and he was to attend a meeting the following day, being 19th November 2019 at 9am.  He requested that a colleague accompany him and letter confirming the details which he received later that day stating: “This letter is to inform you that the company has made the decision that it is necessary to conduct an investigation concerning your actions in relation to excessive driving resulting in unnecessary costs for the company including vehicle wear and tear, diesel costs and overtime.”  The letter further stated: “We plan for the investigation to be completed by 21st November 2019.  When we have completed our investigation, you will be informed of the findings and may be asked to attend a disciplinary hearing.”  It also confirmed that the evidence would be presented at the meeting. 

The Worker attended at the investigation meeting the following day with another driver as a witness, and seven of the routes taken were discussed.  Mr A set out what he considered to be the optimal routes and the Worker was asked to explain why he had used longer routes.  The Worker maintained that the distance discrepancies in the routes between those that the Employer maintained he should have taken and the routes he had actually taken were minuscule.  He also maintained that there had been particular reasons justifying the routes taken e.g., using a tunnel / bypass to avoid traffic congestion within a town / city and taking the motorway instead of secondary roads as it was quicker and led to less wear and tear on the truck.  He accepted that the additional distance taken on two of the routes arose from a detour as he had not been able to take the correct exit owing to being in the wrong lane in the first instance and had missed a junction in the second instance.  He also stated at this meeting that as a driver he was responsible for the safety of the truck, the load and other road users.  He maintained that had never been furnished with the routes to be taken beforehand or provided with any written or verbal guidance and had he been so advised he would have complied.  The meeting concluded with further evidence and/or information being required to complete the investigation.  The Worker felt sick and his colleague had to drive him home.  He received a letter from Ms B dated 21st November 2019 informing him that the investigation period was being extended and apologising for the delay.  The investigation had caused him considerable anxiety and stress.  He felt that his job as a driver was being undermined and that any autonomy in decision-making including rest breaks and safety considerations were being taken out of his hands.  As a consequence, he had to take a few days off work on certified sick leave.

On his return to work on 2nd December 2019, the Worker was furnished with the investigation report and called to a further meeting that day where the findings were discussed.  The report outlined the positions of both Parties as to whether the optimum routes had been taken in relation to each of the routes previously discussed.  It made various findings of fact including that the Worker had limited knowledge of roads off the motorway, had a preference for motorways resulting in the use of longer routes and “is too concerned with wear and tear when driving off motorways”.  It noted that he would like guidance on the routes that the Employer would like him to take and that driver management requires more attention.  It concluded: “As an experienced driver (the Worker) should be more knowledgeable on our routes as these are repetitive.  (The Worker) should be confident to drive on the same roads that the other artic drivers do.  Based on the evidence it is my belief that on occasion (the Worker) is taking longer routes.  Although I do not believe this to be gross misconduct, I do recommend that formal action be taken and a disciplinary hearing take place.  I also recommend that (the Worker) and (Mr A) work together to identify the correct routes for (the Workers) trips.  It is also recommending(ed) that (the Worker) contact (Mr A) when he is unsure of the best route to take.  I recommend that all driver runs are monitored through (A Vehicle Tracker) by his Team Leader on a daily basis and discuss any issues as they occur.”  It was indicated to the Worker that although there was no real problem arising from the investigation findings, he would be issued with a verbal warning for poor work performance in any event.  Later that day, he was handed a letter from HR stating: “Following an investigation and our disciplinary meeting at 2pm today it has been decided that your conduct of taking lengthy unexplained routes during working hours has warranted a verbal warning for poor work performance.  As a driver you are expected to plan your daily routes in advance and ensure that you do not drive excessively out of the way.”  The letter further advised that it was in his interests to plan his daily route more efficiently and to discuss the recommended route with his supervisor to ensure that he takes the most direct route, failing which management would be within its right to initiate further disciplinary action.  He was required to sign the letter confirming that he understood the contents and return a copy to HR which he maintained he did so under duress.

As the Worker took issue with this finding and sanction, he availed of the option to appeal in writing as per the Company Handbook.  On 20th December 2019 and without any further engagement by the Employer, HR handed him a letter signed by the Managing Director confirming that the sanction had been increased from a verbal warning to a written warning.  In particular it stated: “The sanction issued following the Investigation carried out by (HR) was, in my opinion, the minimum sanction available in circumstances where you are found to have “Poor job performance” on a number of occasions.  I have reviewed the specific issues in relation to the 5 routes that were discussed with you during the Investigation and fully agree with the conclusions arrived at by (HR), indeed there is an argument that the excess driving time that resulted in overtime payments from the routes taken should be refunded to the company.  The issuing of a Verbal Warning is lenient in the circumstances and I recommend that a Written Warning should be issued.”  In this respect, the Worker felt that he had been singled out and victimised.  He maintained that he is a responsible employee, and that the instigation of this disciplinary process was unfair in circumstances where he had never received any direction or guidance on the routes to be taken in writing or otherwise.  He maintained that there had never been any issue with the routes he had taken in the past and he has always been open to suggestions on improving performance.  He submitted a reference written by the Employer on his behalf dated 11th January 2018 describing him as being “dependable, reliable, hardworking and he undertakes any task which is assigned to him.”  Although now expired, he maintained that the existence of either a verbal or written warning on his employment file would have an adverse effect on his record and sought to have these expunged.  The Employer’s Representative questioned his driving experience and decision-making in relation to the routes in question given his position.

Summary of Employer’s Case:

Whilst much of the aforesaid evidence was not put in issue, it was submitted on behalf of the Employer that the investigation and disciplinary process adopted, and consequent sanction was justified in the circumstances.  The report giving rise to the investigation was generated from a route tracking system and resulted in an investigation and/or disciplinary action being taken in relation to four drivers of the Employer.  Mr A, Ms B and a HR Manager involved in the investigation and disciplinary process outlined their respective roles in relation to the process and the resulting sanction.  It was contended that Mr A had spoken to the Worker in the past about the routes to be driven.  A copy of his contract and Company Handbook outlining the disciplinary procedures was furnished.  Under questioning, it was accepted that the Employer had not furnished the Worker with any direction or guidance in writing as to the optimum routes to be taken on any given day.  It was also confirmed that the routes taken were compared with Mr A’s view of the optimum routes.

Findings and Conclusions:

In Bord Gais Eireann -v- A Worker AD1377, the Labour Courtset out its remit in relation to disputes regarding internal investigations brought under Section 13 of the Industrial Relations Act 1969 as follows: “It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case.  Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”  This also applies to the WRC whose function is not to substitute its views for those involved in the process but rather to establish if the procedures adopted by the Employer conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases.  Having examined the investigation and consequent disciplinary process in question, I cannot be satisfied that the Employer conformed to the generally accepted standard of fairness and objectivity that would normally be used in a case such as this.  In particular and given the potential ramifications of disciplinary sanction for poor performance, as a matter of basic fair procedures, the Worker should have been provided with written notice and/or guidance as to the routes to be used including a preference for the use of secondary roads over motorways.  In relation to his appeal, the Worker’s input was not sought so as to provide any rationale for the increase in sanction from verbal to written warning.  Other aspects of the process adopted give rise to concern including the absence of notice including the usual safeguards in relation to the disciplinary meeting and delineation from the investigation process.  In the Court of Appeal Judgement of Pierce Dillon -v- The Board of Management of Catholic University School (2018) IECA 292, the potentially significant reputational implications for the good name and employment prospects of the applicant were recognised even though the final warning had expired.  Likewise, in the instant case, I find that the Worker’s concerns in this respect are justifiable in all of the circumstances as outlined above.

Recommendation: (Specific to the facts and Parties to this Dispute)

Section 13 of the Industrial Relations Acts 1969 requires that I make a recommendation in relation to the dispute.  Arising from the aforesaid, I recommend that any documentation pertaining to the verbal and written warning be expunged from the Worker’s employment file.  If this is not practically possible for administrative reasons, I direct that this recommendation be attached to same.  Going forward and with a view to avoiding similar difficulties arising in the future, I further recommend that the Employer provides written notice of and/or guidance as to the driving routes to be used by the Worker within 42 days hereof along with any necessary training.  It would also be prudent for the Employer to avail of this opportunity to review its investigation / disciplinary procedures.

CA-00033797-001 – Complaint of Penalisation under the 2005 Act

Summary of the Complainant’s Case:

The Complainant relied upon the same evidence and/or submissions as set out aforesaid in relation to his dispute under Section 13 of the Industrial Relations Act 1969 to support his complaint of penalisation under Section 27 of the Safety, Health and Welfare at Work Act 2005.  He was afforded some time to consider his position but when pressed was unable to specify how the aforesaid factual matrix fell within the remit of the Act.  He contended that the written warning received from the Respondent constituted penalisation for complying with workplace health, safety and welfare requirements.  An email from the Complainant to the Respondent raising health and safety concerns with loads and a document containing recommendations were submitted but these post-dated the disciplinary process.  Nor did the Complainant seek any specific remedy under the Act and appeared to be more concerned with the removal of the written warning from his employment record / file. 

Summary of Respondent’s Case:

On behalf of the Respondent, it was submitted that the Complainant had not provided any evidence in support of this complaint and that it should be dismissed as not being well-founded under the Act.

Findings and Conclusions:

Section 27 of the Safety, Health and Welfare at Work Act 2005 provides the requirements for a penalisation complaint referred to the WRC under Section 28 of the Act.  Specifically, Section 27(1) defines what constitutes ‘penalisation’ and Section 27(2) provides a non-exhaustive list of the actions constituting same.  Penalisation is defined as “any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of employment”. Section 27(3) provides a list of protected acts where an employer shall not penalise or threaten penalisation against an employee including (a) acting in compliance with the relevant statutory provisions and (b) performing any duty or exercising any right under the relevant statutory provisions.  The onus and burden of proof rests with the Complainant in terms of demonstrating how the factual matrix falls with the terms of this Act.  As confirmed by the Labour Court in O’Neill -v- Toni and Guy Blackrock Limited (2010) E.L.R. 21, in order to make out a complaint of penalisation it is necessary for an employee to establish that the detriment complained of was imposed “for” having undertaken one of the protected acts under Section 27(3) of the 2005 Act.  Whilst safety considerations may well have arisen in relation to the routes taken, the Complainant has not adduced any evidence that the disciplinary sanction imposed was in retaliation for undertaking any of the protected acts under Section 27(3) of the Act.  In this respect, it was not in issue that similar action was taken against other drivers of the Respondent.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint.  Based upon the aforesaid reasoning, I find this complaint not to be well-founded.

Dated:   16-03-2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Industrial dispute – investigation / disciplinary process - Bord Gais Eireann -v- A Worker AD1377 - expunge warning - Pierce Dillon -v- The Board of Management of Catholic University School (2018) IECA 292 – Penalisation - O’Neill -v- Toni and Guy Blackrock Limited (2010) E.L.R. 21