Complainant

Respondent

Anonymised Parties

Foreman

Logistics Provider

Representatives

Joanna Ozdarska                                          SIPTU

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-00046035-001

09/09/2021

The Complainant issued a workplace relations complaint form on the 9th of September 2021 disputing the severity of a sanction imposed at the end of a Disciplinary process.

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021)  the hearing is conducted in recognition of the fact that the proceedings constitute the administration of Justice.

I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was represented by a Union Representative. At the outset, the Complainant was happy to swear an Oath to tell the truth. I was provided with a comprehensive submission dated the 9th day of June 2022. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant believes that the sanction he received at the end of a disciplinary process was excessive and disproportionate. The Complainant also believes that others in the workplace were not treated as harshly as he was.

The Respondent entity was represented by the HR Manager. The said Manager gave oral evidence on behalf of the Respondent company. The Respondent provided me with two written submissions and his evidence was heard following an Oath. The Respondent’s evidence was challenged by the Complainant.

The Respondent rejects that the sanction imposed was in any way disproportionate. This was a Health and Safety issue that needed to be treated with appropriate gravitas and seriousness.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced herein. The Complainant is a shunter operator working with the Respondent for over 27 years. He fully accepts that he became distracted in the workplace on the 14th of April 2021. He failed to conduct the uncoupling procedures so that when he went to drive away, he accidentally snapped or broke the airline and brakeline between his cab and load.

The Respondent position is that whilst there is no question but that this was an accident, the Employer believed that there was also a serious Health and Safety issue. This primarily stemmed from the seeming complacency on the part of the Complainant while operating a shunter. There is no room for distraction when operating heavy machinery in this workplace. The potential to injure himself or others becomes magnified when an operator is careless or distracted.

I note that no particular issue was made concerning the Investigation and Disciplinary procedures adopted in the aftermath of the incident. On the 20th of May 2021 the Complainant was notified that he was receiving a written warning of nine-month duration by way of sanction. The Complainant appealed the decision without success.

The sanction expired in February 2022, but the Complainant still believes this sanction was too onerous and wants it retrospectively reduced or expunged.

The Complainant gave evidence that he felt that the nine-month sanction was too onerous for the incident involved. He was forced to live in a state of nervousness for the duration – it was always hanging over him. He conceded that it was a step down from a final written warning and that he knew that that sanction option was also available to the Employer.

The Complainant believes previous disciplinary incidents were inappropriately taken into account by the decision maker. He also believes that other colleagues involved in similar incidents were neither disciplined nor sanctioned. There was some discussion on this latter point but in the end no other specific comparator incidents were referred to.

The Respondent gave evidence that he considered this to have been a very serious incident which could have had serious Health and Safety implications. He refutes the suggestion that he treated others who had made similar mistakes with leniency. He also denies that in making the decision that he took into account previous disciplines – which would, he says, have pre-dated his taking up this role in any event.

The Respondent is making the case that the sanction is proportionate.

I would have to accept that in considering the facts made known to me, that there is some merit in applying a live warning of some duration. The Complainant himself recognised that he acted with greater caution for the duration of the warning sanction.  Where issues of complacency and ease of distraction are acknowledged, I can accept that a live warning is an appropriate sanction. Such a warning presumably tends to focus attention and makes the party more aware of his or her actions – at least for the length of it’s imposition.

The questions then is whether nine months was too long and should a shorter live warning have been imposed. On balance, I find it is not too long.

It is an established and recognised principle in Irish Law that reasonable behaviour is not a fixed point and that in any given situation there is a “band of reasonableness” which might apply. It is not the Adjudicator’s function to supplant one reasonable outcome with a preferred reasonable outcome.

In The Governor and Company of the Bank of Ireland   -v-  James Reilly  [2015] IEHC 241 Mr Justice Noonan states :

At Para 38 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s6(4) which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the Court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is not however to say that the Court or other relevant body may substitute its own judgement as to whether dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

I have underlined the relevant point being made. Whilst the case under scrutiny in Bank of Ireland  is a Dismissal case, the principle applies to any sanction being imposed. As a relevant body so envisaged, I cannot substitute my Judgement for the reasonable judgement of a reasonable employer.

In other words, even if I accept that a nine-month live warning on file might be stern, I do not find it unreasonable. The fact that I might have preferred a six-month warning is irrelevant as the decision to impose nine months is within the range of reasonable responses of a reasonable employer to the conduct concerned.

In making such recommendations I am obliged to set out my opinion on the merits of the dispute and the positions taken by the parties thereto.

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

CA-00046035-001 – Having set out my opinion on the merits of this dispute I decline to recommend a lesser sanction be applied.