Worker

Employer

Anonymised Parties

A General Operative

A County Council

Representatives

Nicola Coleman SIPTU

Amanda Kane Local Government Management Agency (LGMA)

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00000595

29/08/2022

The Employee was taken off the winter road gritting roster as a result of an incident with the gritting apparatus and he had not been restored to the roster at the time of the Hearing and he contested the sanction was no merited, that the procedure used to sanction him was flawed and the action tarnished his good reputation and he sought compensation for the loss of earnings and compensation for the effects of the Employer actions.

This dispute centres on events of 5th of December 2020 when the Employee’s Supervisor who was anxious to complete a gritting route asked the Employee to drive a broken lorry that was leaking oil in order to pick up a spare lorry The Employee objected on the grounds that the request was unreasonable, was a breach of policies and procedures and would put him at risk. The Employer misconstrued this and framed what had actually happened to scapegoat the Employee for the delay in gritting the road. The Employee found himself in a scenario where he was wrongfully accused of insubordination and serious misconduct and endangerment.

The Employer subjected him to a process that deviated from their own disciplinary policy and procedures, ignored his rights to natural justice and fairness and inflicted upon him a sanction that has remained on his record ever since and that continues to cause him financial loss. Had they properly investigated the allegations against him in the first instance they would have found no case for him to answer. Instead, he was scapegoated for something that he was not responsible for.

Chronology of Events:

5th December 2020: The Employee, with 17 years of service, was part of the gritting team and was paid overtime at double time per 4-hour shift. He was on gritting duty when he heard a loud bang and the lorry malfunctioned. He phoned his Supervisor and informed him that there was oil all over the lorry and a hose must have burst. They agreed on a plan to drive the lorry back to the A depot to have it assessed by a mechanic.

The Employee informed the mechanic that the lorry was in the A yard. The Supervisor suggested the Employee drive the broken lorry to the yard in B where a spare lorry was located. The Employee objected on the grounds that the request was unreasonable, was a breach of policies and procedures and would put him at risk.

The Supervisor told the Employee that he would organise for W (an outside contractor) to complete the route and that he would have them on standby for the next run if the lorry was not repaired by that time.

 A few hours later, the Employee received a call from the Supervisor to say that the spare lorry was now in the A depot and that he was to pick up the lorry, drive it to B, fill it with grit and complete the route that had not been finished. The Employee returned to the yard where the mechanic was still working on the lorry. The spare lorry had not been loaded with grit. The Employee completed the route and returned to the yard after midnight and noticed the mechanic still working on the previous lorry.

6th December 2020: The Employee was rostered for another run at 2 a.m. The Employee completed the second run without incident and returned to the yard, washed the lorry down, and texted his Supervisor to let him know everything was done. The Employee sent a text message to the Supervisor at 12.52 a.m. and raised several safety concerns. There was no further discussion at that time between the Employee and his Supervisor about the matter concerning the breakdown and the subsequent delay in gritting from the previous run.

7th December 2020: Employee was rostered to complete the 4 o'clock gritting run. The Employee's Supervisor suggests reducing payment and hours for the previous day's run, but Employee rejects this and reminds his Supervisor that he completed the route and worked from 10 p.m. to 12.30 a.m. Employee completes the 4-o clock gritting run but subsequently develops stomach pain. Employee contacts Supervisor and another driver to see if there will be a second run, but Supervisor texts him at 19.35 pm saying 'NO' indicating that there would not be a second run. Employee later sees a text from the Duty Engineer sent at 9.15 p.m. saying that there was a second run. Employee informs his Supervisor that he is sick and unable to do the next run, but Supervisor does not reply to this message.

11th December 2020: General Services Supervisor delivers several documents to the Employee's home. These include statements from Employee's Supervisor, the Plant Manager, and the Duty Engineer, as well as a letter requesting the Employee attend a disciplinary interview on December 16th, 2021, to consider disciplinary action against him for serious misconduct and a letter placing the Employee on administrative leave from current winter gritting duties. The author of the letter placing him on administrative leave is also the same person tasked with conducting the disciplinary hearing and issuing the sanction and the statements in his letter are unambiguous proof of his prejudice against the Employee. The Employee protests internally, but the process is prejudiced and ignores the fundamental principles of natural justice.

29th August 2022: Employee exhausts all internal procedures and refers his case to the WRC for adjudication under Section 13 - Industrial Relations Act 1969.

The Employee’s case is that –

The Employer breached the Employees rights under the Statutory Code of Practice on Grievance and Disciplinary Procedures S.I. 146 2000.

The Employer deviated wildly from its own Disciplinary Policy and Procedures at every stage and breached the Employees contractual rights.

 The Employer subjected the Employee to a shambolic process in breach of his rights to fair procedures. The Employer issued a harsh, unwarranted, and grossly unfair sanction to the Employee for something that he did not do.

The Employer issued a sanction that hangs over the Employees head to this day and is akin to the sword of Damocles.

The Employer delayed a data access request contrary to the Employees statutory rights under GDPR legislation.

The Employers actions are responsible for tarnishing the reputation of the Employee, souring workplace relationships, and causing stress and anxiety that has damaged the Employees health and wellbeing and that has had a detrimental effect on his right to dignity at work.

 The Employers actions have damaged the Employee and have caused him financial loss and continues to cause him financial loss. Principles of Natural Justice and fairness is an implied right in every contract of employment. This right has been recognised in law even prior to the Unfair dismissals Act 1977 and to S.I. 146 2000. In 1973 in a seminal judgement Walsh J held that there was an implied term in the plaintiffs contract of employment that an accusation of misconduct should be accompanied by an inquiry that must be fairly conducted. The principles of what constitutes a fair inquiry and a fair process are well established both in statute and case law and include 3 important stages. 1. The Investigation Stage (conducts the inquiry) 2. The Hearing Stage (decides the sanction) 3. The Appeal Stage. These separate stages are vital. In particular, the separation between the investigation and the hearing. There is good reason for this. The Investigator cannot be the Judge and the Judge must be separate to the Investigator. Why? Because if the Investigator engages in Judgement, they will close off viable avenues of investigation. The Employees case is a prime example of this in action. The investigation stage cannot be skipped. It is a fundamental aspect of the administration of natural justice. Citing the case of Martin v Usher Insulations Limited (UD1266/2010) Cathal McGreal BL writes - “Skipping stages of a procedure, for example where the allegation is one of serious misconduct, does not mean that an investigation is not required. It should be noted also that it may be a breach of contract for an employer merely to accuse a worker of something (and this in circumstances where it is intended to conduct an investigation) if the accusation is entirely without basis, suspicion or substance.” An investigation is an evidence-gathering exercise only; a disciplinary hearing, however, is concerned with making specific findings upon that evidence. Findings should not be made at the first stage without hearing the other side.

The Employers failures to adhere to the principles of natural justice:

The Investigation Stage. The Employer bypassed the investigation stage entirely. The Employer failed to investigate the allegations against the Employer in a fair, impartial and unbiased manner. The Employer took at face value the statement of the Supervisor and did not investigate it. The Employer took at face value the statement of the Plant Manager who was not even there during the alleged incident. The Employer took at face value the statement of the Duty Engineer who also was not there during the incident. Using these three statements, which were not examined the Employer formulated allegations of serious misconduct against the Employee.  The Employer sought no statement from the Employee before it formulated allegations of serious misconduct against him and proceeded to the disciplinary stage.  Members of Management met with HR and the Director of Service in or around the 8th of December where together they discussed the allegations and decided that the alleged actions constituted serious misconduct. This meeting included those people that the Employer tasked with conducting both the Disciplinary Hearing and the Appeal Hearing, The Employer accused the Employee of serious misconduct and proceeded to the disciplinary stage without ever asking him what had happened.

 The Disciplinary Stage; The disciplinary hearing began on a footing that was already prejudiced against the Employee, as evidenced by the correspondence issued by the Employer. The Employers letter of the 8 th of December clearly proves that it had already decided that he was guilty of - “insubordination; behaviour that places work colleagues in danger; deliberate or reckless breach of employee duties under other Council Policies; deliberate or reckless breach of employee safety, health and welfare duties and causing unnecessary risk to members of the Public”. The same letter says that a meeting (the Disciplinary Hearing) was being conducted to ‘consider the question of disciplinary action against’ the Employee and is proof that he had already been found guilty and the meeting was merely to decide the punishment. The Employers letter dated December 11th reaffirms the list of findings made even before the Employees side of the story had been heard. Both letters contain evidence of conclusion bias, prejudice and an objective led process. The objective was to sanction the Employee for the delay in the road being gritted and to firmly lay all blame for this delay on him. The Employee says that he felt like he was being scapegoated. On the 3rd of February the Employee receives notice of a sanction including financial penalisation, removal from the gritting roster for 1 year and a that a note with no expiry would be put on his file stating that he was insubordinate.

The Appeal Stage 1. The Employer conducted an appeal that was not an independent process and was delayed by over a year. The initial Appeals Officer appointed was the Director of Services that had met with Human Resources and the Senior Engineer prior to any process being initiated and where together they discussed the allegations and made findings that the Employee was guilty. Clearly, this person was not impartial or independent. The first Appeal meeting conducted was postponed because a dispute arose concerning the Employees right to be fully represented by a Union Official. The Appeal hearing was reconvened on the 30th of July. This was 6 months after the sanction had been issued. 11 weeks later, on the 14th of November the Employee asked for an update on the appeal. The following day 15th of November 2021 he received an email from Mr X in HR saying that Ms N will no longer be the appeals officer and that Director of Services Mr. Y had been appointed. This was over 10 months after the sanction had been issued. The Employee heard nothing from the newly appointed appeals officer. Mr X of HR emailed him on the 13th of January, almost one year since the sanction was issued telling the Employee that the Appeals Officer would be in touch soon. On the 2nd of March the Appeals Officer made their first contact with the Employee, over one year since the sanction was issued. The Appeal hearing takes place on the 21st of April. On the 27th of June, 11 weeks after the hearing takes place and a year and half since the sanction the Employee contacts the Appeals Officer asking for an update.  On the 30th of June the Employee receives the appeal report in the post notifying him that his appeal has failed. Mr Y’s report specifically in relation to methodology he purported to use, and his conclusion are yet another example of the Employers deficit in the understanding of natural justice and their obligations to ensure the Employees rights to a fair process. This will be dealt with in more detail later but in the section ‘Methodology’ Mr Y says that he sought to establish if best practice principles set out below were adhered to’ and refers to point ‘d – that the conducting of the investigation was done in an impartial manner’. In his conclusion and despite all evidence to the contrary he finds that this principle was met and states that the Employee was afforded a fair and reasonable process in accordance with the disciplinary procedure.

Breaches of the Employers Disciplinary policy.

The Employer has a 12-page Disciplinary Policy and Procedure document with an additional 10 appendices. To sanction the Employee for something that he did not do the Employer breached this policy a total of 15 times. In summary: • Failure to investigate impartially and entirely omitting the investigation stage of their policy. • Failure to ensure impartiality at all stages and connivance to frame a particular narrative. • Issuing findings without first investigating the allegations properly • Unfairly sanctioned the Employee. • Delayed an appeals process by over a year. • Conducted an appeal that did not properly examine the facts.

 Law and relevant precedents Paragraph 3(2) of the LRC Code on Grievance and Disciplinary Procedures: “[Fair] procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.” Para 14 LRC Code: “warnings should be removed from an employee's record after a specified period and the employee advised accordingly.” Minnock v Irish Casing, Unrep, H.C. Clarke J. 24/5/07. The employer claimed the plaintiff had merely been the subject of an investigation and therefore his application to restrain flawed procedures was premature. The Court held: - The requirements of natural and constitutional justice may apply only after the first stage, However, here the employer made certain findings as part of its so-called ‘investigation’. In Heneghan v The Western Regional Fisheries Board [1986] I.L.R.M. 225. Carroll J found it unsatisfactory that the manager appointed to represent the company against the plaintiff was a person with whom he had an element of professional antagonism. She referred to the situation as one where he was a “witness, prosecutor, judge, jury and appeal court.”

In Dublin City Council and a Worker (2017) LCR 21646. The Labour Court recommendation states “The disciplinary section in particular, was conducted n a manner which falls far short of best practice.” And citing the financial detriment the worker incurred “as a consequence of the sanction imposed upon him, the Court recommends that the Employer compensate him for the loss of the Storeman’s Allowance using the established formula of 1.5 times the annual loss.”

In Bus Eireann and a Worker (2022) LCR22578 – For the protracted nature of the first appeal the court recommends that the employer pay the Worker a sum of €1000. Conclusion” It is important that fair Disciplinary Procedures exist and that the purpose, function, and terms of such procedures are clearly understood by all concerned.”

The Employee case highlights a severe deficit of understanding procedures, and this permeates every layer of the Employers organisation. The Employee wanted a fair investigation of the allegations against him at the time. A de novo investigation over two years later is probably futile. The Employee wants all allegations against him struck out on the grounds that all of the allegations are unfounded and without substance. He has been sanctioned unfairly for something that he did not do, and unfair procedures were used against him to sanction and to scapegoat him for events that for all intents and purposes the Employee was the responsible party and acted in the interests of his own safety, in the interests of the safety of the public and in the interests of his employer. “When procedures are found to be unfair, the substance of the complaint seems to become largely irrelevant” Cassidy v Shannon Banquets [2000] E.L.R. 248.

At all stages the Employee has defended himself against these allegations and has consistently demanded fairness and defended his rights to natural justice. His stance is commendable and the fact that his pleas were never taken on board by anybody is indefensible. The Employee says that for the last two and half years his life has been consumed with worry and anxiety. He was a frontline worker during the Pandemic which in itself was stressful enough without being subjected to a shambolic disciplinary process based on unfounded allegations. Letters were delivered to his home on a Friday evening when he was with his elderly father from whom he could not hide his distress. The Employer dragged him through an unfair process that he had flagged as unfair from the get-go. It has pervaded his every thought. It has impacted on his family life as countless hours of his personal spare time and family time have been eaten into. He is now at the final hurdle seeking justice and sought that the Adjudicator in consideration of all the evidence upholds his complaint and recommend that his employer remedies the damage they have caused him through their action.

The Employee sought the following remedies:

The Employers unfair sanction is removed from his file on the grounds that the allegations made against him are not true, and had his case been properly investigated by the Employer these allegations and the findings would have been proved to be unfounded.

That the Adjudicator finds that the procedures used against the Employee were flawed and that his contractual rights to fairness and natural justice were breached by the Employer.

That the Adjudicator recommends that the Employer conducts a training programme for all staff who have a responsibility to implement and oversee a Disciplinary process.

That the Adjudicator recommends the Employer to compensate the Employee for damages and for the financial loss he has suffered.

The Winter Maintenance roster (gritting roster) for 2020 – 2021 has been used to assess the gritting runs that the Employee would have done had he not been wrongfully sanctioned and removed from the roster and a detailed claim for a loss of 4614.30 Euros was submitted and substantiated by the Employee Representative.

Finally, the Employer is relying on section 9.14 of their disciplinary procedure in order to argue that they were entitled to skip the investigation stage of the process on grounds where the potential sanction falls short of a final written warning. Aside from whether this clause conflicts with the principals of natural justice, and we contend that it does, the fact in this case is that Employee was accused of serious misconduct, for which the potential sanction is dismissal. The Representative  illustrated that he was accused of serious misconduct throughout our written submission and in the oral presentation of the complaint. For the avoidance of any doubt and in addition to points already made the Representative referred  to: a) the report to dated 26 th January 2021, page 2 - "These items by definition under S12, amount to serious misconduct and are been treated as such under S12.2." and b) That the Employee was put on administrative leave and such leave only applies in cases of alleged serious misconduct

The complaint was submitted to the WRC on 29th August 2022 and states: “I have been sanctioned unfairly. I have exhausted the internal procedures and wish to have my complaint investigated by an AO.” 

Background :On 5th December 2020, the employee who is employed as a Driver was rostered to drive a winter gritting truck. As the A gritting truck had broken down during the run, the employee was requested by the Supervisor, to travel to the B depot to collect the replacement truck. The employee refused to do so on the basis that ‘it wasn't his working depot’.

The Supervisor drove another member of staff to Cand he collected the truck and brought it back to A. At this point the employee was contacted and told that the truck was now in A.

On 8th December 2020, a Senior Engineer, wrote to the employee advising him that he was being placed on Administrative Leave from Winter Gritting. The employee was advised that “this is not a disciplinary sanction and no finding has been made in respect of the investigation or any disciplinary hearing”. The reason he was placed on leave from winter gritting duties was: “because of your failure to follow instructions and unnecessary delay in winter gritting of roads arising from your refusal to use equipment provided from (the Employer)  at a suitable location and putting other employees at unnecessary risk and unnecessarily endangering the travelling public who use roads.”

On 11th December 2020, the Employer wrote to the employee requesting that he attend a disciplinary hearing on 16th December 2020, due to the following alleged behaviours: a. insubordination; b. behaviour that places work colleagues in danger; c. deliberate or reckless breach of employee duties under other Council Policies. d. deliberate or reckless breach of employee safety, health and welfare duties and causing unnecessary risk to members of the Public in relation to alleged incident around the winter gritting Run that was called for at 18:00hrs on Sat 5th Dec. 2020.

 The employee was provided with reports by the following • Supervisor on-call  • Plant Manager  • Engineering Duty Manager. The employee responded in writing to each of the reports and also provided a further 2.5 page written statement setting out his perspective of events. This was sent directly to the Chief Executive of the County Council. In line with section 19.14 of the Disciplinary Policy and Procedure, in cases where the potential disciplinary action is less than a final written warning, the investigation and any disciplinary hearing may be held by the appropriate line manager at a single meeting. At said meeting on 16th December, the employee refused to participate other than to read out a pre-prepared statement.

 On 2nd February 2021, the Employer wrote to the employee advising him that the outcome of the disciplinary procedure was that he would be removed from the Gritting roster for the remainder of the 2020/2021 season. The employee was advised that he could appeal the decision in line with the Disciplinary policy.

On 12th March 2021, the Director of Services met with the employee to hear his appeal relating to the disciplinary sanction. At this meeting the employee’s Representative  raised a number of non-specific objections in relation to SI 146/2000. The meeting was adjourned.

After a number of attempts to clarify SIPTU’s objections and also to find a suitable date for all, the appeal meeting re-commenced on 30th July 2021. At this meeting an objection was raised by the employee in relation to the HR managers participation as she had previously met the Supervisor, the Administrative Officer, HR, prior to the original disciplinary meeting.

Subsequent to that meeting of 30th July 2021, the HR Manager following consultation with the Director of Services with responsibility for HR, recused herself from the appeal. Another Director of Services was instead appointed to hear the appeal.

In advance of the winter gritting 2021/2022 season commencing, the SEO, HR wrote to SIPTU on 7th October offering to return the employee to the roster provided he would commit to travelling wherever necessary to collect the truck should abnormal circumstances require it: “The Council will return (the Employee)  to the winter gritting roster on the condition that (the Employee)  commits to travelling wherever necessary to collect the winter gritting truck if required by abnormal circumstances. This may be done under protest pending the outcome of current disciplinary/appeal process.”

On 22nd October, the Trade Union Representative responded on the employee’s behalf advising that he would not participate on these terms. On 3rd June 2022, the Appeals Officer circulated his appeal report. The outcome of this report was that the employee’s disciplinary procedure was conducted in a manner that was fair and reasonable. The employee has remained off the winter gritting roster since 11th December 2020.

The Council’s Position:

 The Winter Maintenance programme is undertaken through a collective agreement between the Council and SIPTU.

Gritting is considered a very important part of the Council’s work given the significant health and safety implications it has for the people of the county and anyone driving on the county’s roads.  During the 2020/2021 gritting season, there were four separate gritting routes with a different driver and truck used for each.

The replacement A gritting truck had been located on the night at the B depot.  It takes approximately 12 minutes to get from the A Yard (where the employee is based) to B Depot where the replacement vehicle was located. While it is an unlikely scenario, there is always a small chance that abnormal events may require a driver to collect a replacement truck. The replacement truck is parked in the centre of the county so as to make it as readily accessible for drivers on any gritting route should it be required. During the 2020/2021 gritting season, there were four gritting trucks on the road at any one time. It is logistically impossible to ensure that a replacement truck can be at a location that suits each winter gritting driver at all times.

The Winter Maintenance Agreement in place at the time stated that overtime would be paid where a gritting truck had broken down.

The Council believes that the employee has been dealt with appropriately and in accordance with its Disciplinary policy.

Upon being initially placed on administrative leave from winter gritting duties due to his refusal to commit to travelling to collect the replacement truck should a similar scenario arise, the employee was advised that it was not a disciplinary sanction and that no finding had been made against him.

At the original disciplinary hearing, all principles of natural justice were followed. The employee was given advance notice of the issue, the reports forming the basis of the disciplinary, the right to be represented and the opportunity to respond.

 In line with section 19.14 of the Council’s Disciplinary Policy and Procedure, in cases where the potential disciplinary action is less than a final written warning, the investigation and any disciplinary hearing may be held by the appropriate line manager at a single meeting. This was followed.

 The disciplinary sanction applied was to remove the employee from the roster and this was effective from 3rd February 2021.

The employee was informed of his right to appeal which he availed of.

Given the concerns raised by the employee and his representative in relation to the appeal the Director appointed to hear the appeal was replaced.

The employee has been offered the opportunity to return to the gritting roster on a number of occasions provided that he reassure the Council that should it be required that he would travel to collect the replacement truck. He has repeatedly refused this opportunity.

 The Council submitted that the principles of natural justice and fair procedures have been applied, the Employee has been represented at all times, has been advised about the procedure and was provided with all documents which were to be relied upon in the course of the disciplinary process. He has been advised of his right to appeal and availed of this process. The employee is dissatisfied with the outcome but this does not mean that the process followed was not appropriate, fair and reasonable.

The Council believed that the matter was dealt with fairly, appropriately and in accordance with its Disciplinary procedure and asked the Adjudicator to dismiss the complaint.

The Parties submitted substantial pre-hearing submissions, had the opportunity to state their case at two Hearings and engaged in significant post hearing submissions. It was obvious from the detailed submissions that this was an issue of great importance to both parties. The matter before the Adjudicator concerns a sanction against the Employee which involved and still involves him being removed from being a Driver in the Winter gritting programme. It is unclear if this sanction falls within the Company Disciplinary procedure and it was contested on both the details involved resulting in the sanction and the procedural process involved in reaching the sanction. It is not normally the role of an Adjudicator to conduct a re-investigation of the issues which lead to a sanction or disciplinary action as they would not have all the information which was available at the time of the sanction. This Recommendation will primarily focus on the process which lead to the sanction but will make some “observations” regarding the issues which lead to the sanction.

The Complainant was issued with an unsatisfactory conduct/performance notice due to insubordination shown by failure to follow Supervisors instructions to collect and use a lorry from another location for gritting a road and putting unnecessary health and safety risks to the travelling public and other employees. He was taken off the winter duties for 20/21 and was required to give a commitment to collect lorries wherever they are located before being allowed back to work and he was expected to comply with this instruction for the 21/22 winter gritting season. The Employee has declined to accept these terms and remains off the Gritting roster.

The Employees position on the incident that led to the sanction was that oil was spilling from the gritter machine attached to the lorry he was using and he brought it back to the base with rags on the truck to minimise the oil spillage. He refused to drive this lorry to a second location to pick up an alternative lorry to complete his gritting run on the basis the lorry was unsafe.  The Employers position was that the Employee refused an instruction to use the lorry to go pick up an alternative truck at the second location and the lorry was safe to do so.

The Employer has a comprehensive and what appears to be a very well written and fair policy. It is not the policy itself that is in dispute but the application of the policy in the circumstances of this dispute.

The Disciplinary process

The Employers disciplinary process states insubordination is gross misconduct. The various sanctions allowed in the Employers disciplinary policy are as follows;

A Verbal warning

A Written warning

A Final Written warning

Some other appropriate disciplinary action short of suspension without pay

Suspension without pay

Transfer to another task or section

Demotion

Some other appropriate disciplinary sanction short of dismissal

Dismissal

The policy states the steps will generally be progressive and states “following a written warning other appropriate disciplinary action may be considered in individual cases prior to dismissal.” It also states “In addition to any warnings issued (verbal or written) other disciplinary sanctions may be applied. “

It is unclear to the Adjudicator from the above list of sanctions where the sanction given by the Employer fits.

The policy, which is quite comprehensive and detailed, states verbal warnings can be issued by the appropriate Line Manager and written warnings can also be issued by Line Managers. However, final written warnings must be signed by a Senior Executive Officer, Senior Engineer or Director of Services. The Employees misconduct notice/sanction was signed by a Senior Engineer further adding confusion as to where the action taken fits into the disciplinary process, if at all.

The Policy also requires in Section 9. 10 that “the employee will be provided with reasonable notice to attend an investigation meeting” and in 9.11 states “the purpose of which is to establish the facts of the matter after which a determination may be made as to whether misconduct or serious misconduct has occurred”. On the 8th of December 2020 the Employee was invited to a “disciplinary interview” on December 16th at which the question of “disciplinary action against you ..will be considered” …for four issues; Insubordination, behaviour that placed colleagues in danger, deliberate and reckless breach of employee duties and deliberate and reckless breach of employee safety and causing unnecessary risk to the public” On December 11th 2020 the Employee was informed he was placed on administrative leave (he remained on normal hours) and taken  off gritting duties “in order to allow the Council to investigate the matters fully” and “to facilitate the investigation”. The Employee was informed this was not a disciplinary sanction and no finding had been made in terms of the investigation or any disciplinary hearing.

Insubordination, negligence which might cause loss or injury and deliberate and reckless breach of employee safety, health and welfare duties are all defined as serious misconduct in the Policy.

In certain situations, a disciplinary action in the policy can be conducted locally by the relevant Supervisor/Manager if the Disciplinary action can only amount to no more than a verbal warning. In this instance no verbal warning was issued and the sanction was to remove the Employee from the Roster for the foreseeable future.

Under Section 9.14 of the Disciplinary Policy “in certain situations where the potential disciplinary action is less than a formal written warning the investigation and disciplinary hearing may be held by the appropriate Manager at a single meeting”. The Employee was never informed in writing that this was to be the case and this led to some confusion on his part as to what was happening. Equally the Policy requires an Employee to cooperate with an Investigation and the Employee choose not to do so and read out a pre-prepared statement at the meeting. The Employee also had an unrealistic expectation in approaching the CEO prior to the Disciplinary meeting and expecting her to intervene in the process underway.

 With regard to the hand delivery of the meeting invitation to the Employees house I do not consider this an appropriate method of communicating a notice unless there are exceptional circumstances. Given the Employers dissatisfaction with the Employee actions at the time and the concern for public safety I find that the delivery method of the meeting invitation meets the exceptional circumstance threshold.

It does appear that the HR Manager was involved in agreeing to a disciplinary meeting and therefore it was appropriate that she recused herself from doing the appeal. Nothing stands or falls on this as the Appeal was conducted by someone not involved in the initial phase of the process.

I find the efforts of the Supervisor were fair in trying to get to the root of the issue and because the Employee choose not to engage in the process the Supervisor was left with little choice but to rely on the evidence he was provided in statements and to continue the administrative leave.

With regard to the appeal process it took well over a year to complete. The appeal process was conducted during Covid and all normal timeframes went out the window for conducting grievance or appeal processes during this time and indeed in some employments they were suspended completely. I note the Employee had to follow up on a number of occasions during this time for a decision and all the time he was still suspended from the Roster. This delay from sanction to final internal decision on appeal was too lengthy, even during Covid, especially as it would have impacted on the Employee resuming on 21/22 the Winter gritting programme.

The Employee Trade Union representative set out in great detail her view that a number of breaches of the disciplinary process happened and did extensive work and research on the many issues involved. On assessment of the situation, I see no reason, under the disciplinary procedure, why the Employer did not use the paid administrative leave capability in the disciplinary procedure due to their concern for a repeat off the events in question and public safety, then conduct the investigation and then convene the disciplinary meeting. The way the process unfolded led to a lot of understandable confusion and distrust by the Employee in the process, especially given his concerns about how he may have been dealt with in the past. It does not make sequential logical sense to the Adjudicator why the Employee was told on December 8th to attend a disciplinary meeting on Dec 16th with specified charges and then informed on December 11th that an Investigation was to be conducted into the matters.

Observations on the substantive issue in dispute

With regard to the incident itself it is not the role of the Adjudicator to second guess the detailed statements of the various parties and the sanction imposed by the Employer. However, I will make a number of observations. Of note is the assessment of the mechanic that the lorry could have easily been driven to the second location. Also the Employee was not so concerned with the oil loss to stay at the side of the road and call for assistance as per the breakdown policy and he did drive the lorry back to the Base depot thus reducing the credibility of his argument that the lorry was unsafe to drive. Also of note was the Mechanic seemed to think that the use of rags to control the spill unlikely due to the location of the damage. The Employee also never called for sand to be placed on the affected area where he stated the oil had spilled which would have been the appropriate action for public safety. I do not intend to get into the detailed working of the Breakdown policy but suffice is to say the Employer should review it in light of the events involved in this incident.

I do not deem the medial certification supplied relevant to the situation.

I do not consider the information supplied by the Trade Union Rep in his internal statement as a key factor in considering the dispute.

I note that trucks are located at various location and this is to suit the supply of service safely to areas quickly and to suit the distance regarding travel from the home of employees doing the gritting. While the Employee expressed that his core issue was with driving the gritter as he felt it was unsafe, he does not appear to have thought the completion of the gritting as a key issue to get completed that evening with serious ice forming on the roads and increasing the risk to the travelling public. His actions delayed the gritting by some considerable time. 

The Employee seemed to have issues with the location of a lorry outside of the main depot, but he could have chosen a better time than the events in question to register this and have his disagreement dealt with. The Employee was offered a return to the roster for the 2021/2022 year in correspondence dated October 10th 2021 (albeit with certain conditions) and he was offered the opportunity to return under protest while his grievance was exhausted. I find that the action of the Employee unreasonable by refusing this offer as it shows his concern was mainly with the use of a second location for the lorries rather than the use of an unsafe lorry but I also accept he had genuine concerns concerning the continuing sanction at the time. His action effectively limits his claim to the period between December 2020 and April 2021 and the Employee has submitted this and the Trade Union Representative agreed that to be the case and his loss mounts to a 4614.30 Euros. This situation is accepted by the Complainant but he also sought compensation for the effects of the dispute on the Complainant.

In summary I have reached the following key findings;

There was confusion about whether an investigation or disciplinary meeting was taking place and there is evidence the disciplinary hearing was commenced prior to the investigation being initiated.  If this process had been clearer the views of the Employee might have been more fully established and considered during an investigation process. However, this may not have influenced his view that a second base should not be being used for the location of lorries which is an unreasonable viewpoint. It appears also that a full statement from the mechanic who conducted the repair in an investigation process would have been very beneficial.

There is confusion about where the sanction fits withing the Council disciplinary policy, if at all.

The events of the day are not for the Adjudicator to revisit and both versions of the story have merit however the input from the Mechanic would give the impression that the lorry was fit to drive to the second base.

The Employee refused a reasonable instruction and did not involve himself or seek a solution that would address the issue quickly.

The Employee was offered the opportunity to return to the gritting in October 2021 with reasonable conditions pending completion of his appeal and work under protest but declined to do so. This was unreasonable of the Employee.

The Employee has had a long unblemished service with the Employer and he should continue to enjoy this status in the future but he equally has a responsibility by his future actions to preserve this status.

Given the wide ranging nature of this dispute, particularly to do with the application of the Disciplinary policy, I have considered the submissions from both parties and in an effort to assist the Parties in future situations I suggest the Employer consider the following suggestions;

That the Employer clearly identifies which sanction under the Disciplinary Policy it is applying in future and that it amends its Policy to include a sanction, as used in this situation, which is not clearly defined in its Disciplinary policy.

In future, except in exceptional circumstances and/or where immediate corrective action is required and the obvious outcome would be a verbal warning, that at least five days elapse between the issuing of an invitation to a disciplinary meeting and the disciplinary meeting itself to allow for adequate time for an Employee to prepare for the meeting and receive appropriate Trade Union representative advice. This also would assist with the Employer not having to visit the Employees home to deliver documents. I suggest the Employer consider adjusting its Disciplinary Policy accordingly for the future and advise all Managers and Supervisors of same. I am conscious that any changes to the Disciplinary Policy may have an impact for the same disciplinary polices in other Councils and therefore I have included these modifications as suggestions and not as Recommendations in consideration of any wider consideration/consultation that may be required to make the changes.

With regard to the specific dispute I recommend as follows (given it is not the role of an Adjudicator to re investigate a sanction issued);

The sanction appears to have been taken off the Employees personnel record and if not, should be immediately and have no weight in any disciplinary proceedings (should they ever occur) in the future.

That the Employer reviews its breakdown policy and ensure the instructions for similar situations are clear and included for the future.

That the Employer clearly writes to an Employee in future situations when using the Disciplinary policy whether an employee is invited to attend a disciplinary or investigation meeting or a combined situation as allowed for.

I recommend that the employee be returned to the Winter Gritting roster for the 23/24 Winter season on his acceptance, in writing, of the Council policies on location of gritting lorries and breakdown procedure.  These updated breakdown procedures should be provided to the Employee within 21 days of the date of this Recommendation to allow the Employee time to consider them within the appeal period of this Recommendation.

With regard to the issue of loss of earnings I have concluded that the Employee and the Employer both contributed, in some part, to the situation. The Employee may have had genuine concerns about safety at the time of the incident but this was not validated by later detailed assessment of the situation and he refused an instruction from his Supervisor. In not defining clearly what sanction they were pursuing and the confusion about inviting the Employee to a disciplinary meeting in advance of the investigation being conducted (or not informing him that they were a combined meeting) led to initial procedural queries and genuine confusion and questioning by the Employee about the appropriateness and intentions of the process. As my role is to try and find a resolution to this dispute, I recommend that the Employee be paid compensation of half of his loss and this amounts to 2307.50 Euros. This Recommendation above is conditional on all Recommendations being agreed and implemented by the parties. I  do not recommend in favour of either party as they both contributed in various ways to the dispute as set out above.

Trade Dispute