Worker

Respondent

Anonymised Parties

A driver

A public transport provider

Representatives

SIPTU

Byrne Wallace solicitors

Act

Dispute Reference No.

Date of Receipt

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

CA-00038853-001

22/07/2020

The worker is a driver and the employer, a public transport provider. The worker was subject to a final written warning, which expired on the 9th January 2021. This was for proceeding through a ‘do not proceed’ signal. The worker disputes the sanction. The employer states that the sanction was justified, and that no recommendation should be made as the warning has now expired.

The worker outlined that the disciplinary sanction was unfair and disproportionate. The worker said that while the warning was no longer active, there was precedent to make a recommendation (LCR 21972 and also Whelan v Irish Wheelchair Association UDD1436/2014 and DHL Express v Coughlan UDD1738/2017).

The employer had treated an expired warning as an active warning and the worker asked that the warning be expunged, and moderate compensation be awarded. The worker outlined that a previous warning (also for 12 months) expired 6 months before this incident.

The worker explained that he had been conducting a sweep of the tracks and was 8 minutes behind schedule. The incident occurred at a manoeuvre point on the network and not a junction. He was dealing with the passenger information IT system in order to prepare the vehicle for the next driver. It was early in the morning and dark. He inadvertently went through the signal at low speed. There were no passengers on board, and this took place at a low-risk location. It was the lowest category of SPAD. The signal should have changed automatically as he approached it, but this did not occur through a fault. Following the incident, the worker raised the need to improve the visibility of the signal.

In respect of the disciplinary process, the worker outlined that he was given one day’s warning of the disciplinary meeting. The sanction took into account his previous history. The sanction imposed was disproportionate as this was an error. It was also not in keeping with the ‘just culture’ policy, which provides that inadvertence is not punished. The policy enhances open communication and honesty. The worker outlined that there had been no acknowledgement of his honesty in respect of the incident. He outlined that several other drivers were given a lesser sanction.

The worker outlined that a lesser sanction was appropriate given the nature and gravity of the incident and because he had shown full cooperation. The worker asked that the recommendation should expunge all warnings. He acknowledged that there was no reference to his previous record at the appeal hearing.

In reply to the employer, the worker outlined that the dispute was not moot. This adjudication had been delayed by the pandemic and it would ordinarily have taken place during the period of the warning. It was submitted that the disciplinary policy states that the employer ‘may’ bypass steps, this was not mandatory; a dismissal would not have been automatic even where there was a live warning on file.

While there was a safety issue in this case, the incident was at the lowest level of the SPAD categorization as there was no prospect of a collision. It was submitted that the appeal manager had taken account of the previous history and the worker had no opportunity to address this.

The worker submitted that the disciplinary letters sent by the employer do not address the substance of his submissions. They do not explain how they assessed the mitigating factors put forward by the worker: the low speed, it being less serious, the element of inadvertence and that this was a once-off event. The employer’s ‘Just culture’ was clear that drivers should not be punished for inadvertence.

It was submitted that another driver did the same thing at the same location and was given counselling and not a more serious sanction. This driver had a SPAD history. Safety issues were always raised at hearings with the employer.

In conclusion, the worker outlined that he had not been treated fairly and he should be told what the employer thought of the mitigating factors he had put forward. It was submitted that the employer is working off an unofficial matrix of no more than two SPADs in a two-year period.

The employer outlined that since the warning has now expired, the matter was moot, and no recommendation should issue. The employer outlined that the previous warning had not been taken into account in determining this sanction. There was no reference to the previous warning in the disciplinary outcome letter. The employer outlined that this was a SPAD offence and involved the serious matter of running a red light. The employer had considered all aspects of the incident to determine a proportionate sanction. The worker had done the same thing 18 months before and received the same sanction.

The employer outlined that its ‘Just culture’ did not prevent serious issues being tackled including safety issues. It submitted that if the previous warning had been taken into account, the sanction in this case would have been dismissal. The previous incident was not taken into account and the sanction was, therefore, the same as before.

The employer did not know whether the issue of the signal not changing automatically on the arrival of a vehicle had been reported previously. It was, however, never okay to pass a signal. It was submitted that the potential for improvement on the network did not excuse a breach. In respect of the investigation meeting, one manager was present to conduct the investigation and the other two were there for the broader safety issues.

The employer outlined that the only reference to ‘previous history’ was one line in the appeal outcome letter. It was submitted that the managers were best placed to judge safety issues and the question was whether the employer’s actions were within the band of reasonable responses. There was detailed engagement with the safety and disciplinary issues. It was submitted that dismissal could well have been on the cards, but the employer imposed the warning, which had since expired.

The employer submitted that the standard approach in cases of expired warnings was set out by the Labour Court in LCR 21763. Here the Labour Court declined to make a recommendation on the substantive issue as the warning in question had expired through the effluxion of time. The employer said that there would be no point in making a recommendation on an expired warning. Furthermore, any subsequent issue could be considered on its merits.

In reply to the worker, the employer outlined that within ‘Just culture’ the employer can still act in cases of serious negligence. All SPADs were serious by their nature and each incident is considered on its merits. It was submitted that you could not divorce the outcome letter from the minutes of the meeting, at which there was much discussion of the incident. The outcome letter did not have to recite the contents of the minutes. The employer stood by the collective agreement, which provides that the employer could not rely on expired warnings.

This dispute relates to an incident on the 23rd December 2019. This led to the worker being suspended and an investigation meeting took place on the 3rd January 2020. There was a subsequent disciplinary hearing on the 9th January 2020 and the final written warning issued on the 10th January 2020. The appeal was heard on the 17th January 2020 and confirmed the sanction on the 21st January 2020. The final written warning remained on the worker’s file for 12 months, i.e. until the 9th January 2021. The worker returned to work during the week of the 13th January 2020 and was initially accompanied by the Driver Trainer.  

Section 13 of the Industrial Relations Act, 1969 requires the adjudication officer to ‘make a recommendation to the parties to the dispute setting forth his or her opinion on the merits of the dispute.’ By its very nature, this will depend on the particular circumstances of the trade dispute in question. I note the Labour Court recommendations opened by the parties and the approaches taken in respect of situations where a warning has expired through the effluxion of time.

There are, of course, statutory jurisdictional limits to what can be adjudicated upon in a trade dispute, but this is not a dispute ‘involving the rate of pay, hours or times of work of a body of workers’ and nor is the dispute excluded by either section 23 or section 26A of the Industrial Relations Act, 1990.

As submitted by the employer, I accept that the employer did not have regard to the worker’s previous, expired warning in determining the sanction of the 10th January 2020. There is no reference to the previous warning in the sanction letter. While there is reference in the letter of the 21st January 2020 to ‘your previous record’, this was pro forma text and the employer did not bring this up during the appeal hearing.

On balance, I am of the view that the dispute merits a recommendation, notwithstanding that the warning expired on the 9th January 2021. This is because the worker made points in mitigation regarding the incident of the 23rd December 2019, for example his low speed at the time, the fault with the signal, the visibility issue, this being inadvertence, the low prospect of a collision and the worker’s full cooperation. While the investigation meeting, the disciplinary hearing and the appeal hearing all involved the attendees fully discussing the issues, the sanction letter and the appeal letter were very much to the point. They confirm that the charge of not driving ‘with due care and attention is proven’ and that the sanction is a final written warning for 12 months. There is no mention of the points made in mitigation, nor why they did not mitigate the sanction to a lesser sanction.

I accept the employer’s submission that matters such as health and safety are those very much within an employer’s range of reasonable responses. ‘Just Culture’ excludes deliberate breaches, repetitive inadvertence and ‘serious negligence’ from its scope. The worker’s submission was that the incident was not ‘serious negligence’ and that it should have fallen within ‘Just Culture’ and not be subject to sanction. The employer may, of course, disagree with the worker’s submission, but it should set out why and say why the mitigation offered was insufficient.

The warning expired in or around the 9th January 2021 and is now ‘erased’ per the disciplinary procedure. The recommendation provides that the final written warning should not have been imposed because the employer did not explain how the incident constituted ‘serious negligence’ and why the mitigation offered was insufficient. It is not appropriate to recommend an alternative sanction as it is for the employer to determine sanction, having taken account of the submissions and set out its position. Compensation is not warranted in this case as the employer was acting in good faith.

CA-00038853-001

I recommend that that the final written warning of the 10th January 2020 be expunged from the worker’s record as it should not have been made without a finding of serious negligence and in the absence of explaining why the mitigation offered by the worker was insufficient.

Industrial Relations Act / merits of the dispute / final written warning