Employee

Employer

Anonymised Parties

A HGV Traffic Controller

A Parking Services Company

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 - 00000345

07/06/2022

The employee is a HGV driver and is responsible for removing illegally parked vehicles from Dublin streets.  He has worked with the company since 1999 and is a highly experienced employee, with qualifications in training and manual handling.

Parking enforcement officers work in pairs and, in December 2020, the employee was assigned to work with a new partner.  The new partner had been working with the company for about two years when he was assigned as a partner to the employee.  On January 22nd 2021, they had an argument about whether it was safe to lift a vehicle or if it should remain on the street and be clamped.

The employee submitted an incident report concerning the altercation and how he was spoken to by his colleague.  He said that he had been insulted and treated in an aggressive manner.  He described his colleague’s treatment of him as “improper” and suggested that it bordered on bullying.  He requested not to be partnered with his colleague and he has not worked with him since.  At the hearing, he said that he now has a new partner and that there are no issues between them.

The operations manager carried out an investigation into the incident reported by the employee on January 22nd.  Between the end of January and the end of March 2021, he had three meetings with the employee and two meetings with the employee’s former partner.  He produced a draft report on June 21st in which he concluded that an altercation occurred between the two men and that voices were raised, but he could not determine if the employee’s colleague used abusive language towards him.  Based on the conflict of evidence, he could not determine either if the employee was treated in an aggressive or threatening manner by his partner.  While he found that “there has been a systematic breakdown of the relationship between both parties,” the operations manager did not conclude that bullying had taken place.  The operations manager recommended that the two employees engage in mediation to resolve the issues between them.

The employee had an input into the findings in the draft report and these were included in the final report issued on July 23rd 2021.  On September 12th, the employee appealed against the findings, citing 16 grounds of appeal.

An appeal hearing took place on September 22nd, chaired by the chief operations and finance officer.  On October 27th, she issued a comprehensive response to each of the grounds of appeal.  She was not satisfied that there was evidence that the altercation between the employee and his colleague on January 22nd 2021 was in breach of the dignity at work policy.  While she found that there was a breakdown in the relationship between the employee and his former partner, the chief operations and finance officer concluded that what occurred between them was not bullying, but a “case of both parties not seeing eye to eye.”

On June 7th 2022, the employee submitted his grievance to the WRC for an investigation.  He is seeking a recommendation that the procedures followed by the employer were unfair and not in accordance with the principles of natural justice.  He also seeks confirmation that the employer will comply with fair procedures in the future.

On behalf of the employee, Ms Byrne made an opening submission setting out the chronology of the events that have been outlined in the “Background” section above. 

Before he submitted his complaint on January 22nd 2021, Ms Byrne said that the employee had previously raised issues with the operations manager concerning his driving partner.  She said that he had requested a change of partner due to health and safety issues and the difficult working relationship he had with his partner.

Following the issuing of the draft report on July 2nd 2021, Ms Byrne said that the employee expressed his opinion that the operations manager should not have conducted the investigation because the employee had raised health and safety concerns regarding his driving partner with him prior to and including the incident on January 22nd.  He was also of the view that the process was not conducted in an independent manner and that the only involvement of the HR department was note-taking.  Hi opinion is that an independent member of the senior management team should have carried out the investigation.

During the investigation, the employee was represented by his SIPTU shop steward and his partner was represented by a supervisor.  The supervisor intervened at the investigation meeting on February 4th 2021, and it is the employee’s case that this was unfair and that he should not have been allowed to offer his opinion or to answer questions.  The employee repeated his concerns at the appeal meeting, the outcome of which was not in his favour.

The Code of Practice on Grievance and Disciplinary Procedures states as follows:

“That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking in to account any representations made by or on behalf of the employee and any other relevant or appropriate evidence, factors or circumstances.”

Ms Byrne said that the employee was under some stress during the six months when the investigation was taking place.  She repeated her assertion that the operations manager should not have conducted the investigation because he had prior knowledge of the difficult relationship between the two drivers.  She also complained about the fact that the employee’s partner was accompanied at the investigation meeting by a supervisor who intervened and participated in the process.  For all these reasons, the employee believes that the investigation was flawed.

The Employee’s Statement at the Hearing

The employee explained that his primary task is to remove and relocate illegally parked vehicles.  Before he was paired with his new partner in December 2020, the employee said that he thought they would have a fractious relationship.    He said that the full responsibility for moving a vehicle is the driver’s and that, if he had safety concerns, he would chose to clamp and immobilise a vehicle rather than tow it away.

Six months before they were partners, the driver and his former colleague were dealing with a large heavy vehicle that was illegally parked.  He said that he told his colleague that he wouldn’t move the vehicle.  When the pairing was arranged, the employee said that he told the operations manager that his new colleague wasn’t qualified to drive a truck with a trailer, meaning that he was not licensed to tow a vehicle with his truck.

On January 22nd 2021, when they were dealing with the illegally parked truck, the employee said that he erred on the side of caution and he told his colleague that he wouldn’t move the truck.  He said that his colleague wasn’t happy and they had an argument.  He had spoken to the operations manager on January 20th and he told him that things weren’t going well between him and his partner and this is one of the reasons that he thinks that the operations manager should not have done the investigation.

Concluding his submission, the employee said that he thinks that there was an attempt at bullying and that he wasn’t having it.  He said that he had been a trainer in the company, but this was no longer his job and he told his partner that he wasn’t training him.  Before the incident occurred, he asked to speak to someone in the HR department, but this didn’t happen.  He thinks that the incident may not have happened if someone from HR had intervened.

When I asked him what he expected from this hearing today at the WRC, the employee said that he wants the company to conduct matters in a more transparent and fair fashion.

On behalf of the employer, Ms Smith provided a comprehensive submission regarding the employee’s grievance, setting out the chronology of events that concluded with the outcome of the appeal on October 27th 2021. 

Ms Smith said that, when the altercation took place on January 22nd 2021, the partner driver was on probation.  On January 13th, the employee approached the operations manager seeking a change of partner because of a difficult working relationship and health and safety concerns.  The following day, he put his request in writing in an email to the operations manager.  The employee received a reply from the HR department, asking him to set out the reasons for his request and to provide details of his concerns about health and safety.  He was informed that when this information was sent in, a meeting would take place to discuss his concerns.  On January 21st, the employee raised his concerns with the operations manager about the lifting of vehicles.  He gave three examples when he claimed that his partner wanted to lift vehicles when it was his opinion that they should remain on the road and be clamped.  The operations manager agreed to discuss this issue with the employee’s partner.

Before a discussion could take place, on January 22nd, the employee submitted a report regarding an incident between him and his partner when they disagreed about the lifting of a vehicle.  On Monday, January 25th, the employee requested not to be assigned to work with his partner until the outcome of his grievance investigation and this was facilitated.

Regarding the fact that the operations manager conducted the investigation, Ms Smith said that no concern was raised about this until the last meeting with the employee.  She submitted that the operations manager was not biased and the fact that he appointed the employee’s partner to the job is not material to the investigation, because he appoints all the drivers.

Considering the selection by the partner of a supervisor to attend the investigation meetings with him, Ms Smith said that the employee was entitled to be accompanied by a colleague or a SIPTU representative.  He selected a colleague who is a supervisor.  The partner is not a native English speaker and the supervisor may have assisted him with clarifications at the meetings.  He was entitled to ask questions or to make statements.

Ms Smith referred to the detailed notes of each of the meetings which the operations manager conducted with the employee and his partner.  She pointed out that the notes were shared with both sides in advance of the production of a draft report and that both employees had an opportunity to comment on the draft report before the final version was issued.  The employee availed of his right to appeal.  For all these reasons, Ms Smith argued that the investigation was conducted in accordance with the principles of natural justice and was fair in all respects.

I have considered the written submissions provided by the employer and the employee’s side and the representations made at the hearing of this dispute on January 23rd 2023.  I have also listened carefully to the testimony of the employee.

The employee’s job was not simply about driving, but about making decisions on an hour-by-hour basis that required considerations of legality and safety.  With more than 20 years’ experience, it must have been irritating to be challenged by a relative newcomer, who the employee described as “over-enthusiastic” about his job.

Every workplace has a combination of experienced people and newcomers, and most of us starting in a new job will have a degree of enthusiasm that eventually wears off.  This combination of enthusiasm and experience is necessary to make organisations function well and the challenge is to observe and learn from each other.  It seems that both employees failed in this regard on January 22nd 2021, when they argued about how to deal with a heavy vehicle that was illegally parked.

In the days leading up to this altercation, the employee had asked for a change of partners, and it seems to me that his grievance could have been resolved by pursuing that course of action, rather than what turned into a considerable investigation which ended up involving matters not connected to the event.  That said, it appears that some positive outcome emerged, when it was discovered that additional training was required for employees not licensed to tow vehicles.  In their report of July 23rd 2021, the operations manager acknowledged the contribution made by the employee in connection with this issue and this was repeated in the report of the appeal hearing on October 27th.

Having read both reports, I find that they were balanced and fair.  I am satisfied also that the employee was treated fairly when the partner about whom he complained was assigned to a different driver and when he was partnered with a new employee.  From the complainant’s statement at the hearing, I understand that the new employee has no driving responsibilities, but that he completes all the paperwork.  With this division of responsibilities, the employee has sole discretion regarding the lifting and removal of a vehicle or the immobilisation and clamping of a vehicle.  From what the employee said at the hearing, it appears that this arrangement is working well.

It is my view that the investigation carried out by the employer in June 2021 and the appeal which took place in September were fair and in accordance with the Code of Practice on Grievance and Disciplinary Procedures, set out in Statutory Instrument 146/2000.  I find that there were no procedural defects in the investigation or the appeal.  The grounds of appeal raised by the employee were all satisfactorily addressed in the response from the chief operations and finance officer on October 27th 2021.

I recommend that the employer takes no further action regarding this matter.  As the employee has rejected an offer of mediation, I recommend that he takes no further action either and that he considers the matter as closed.

Grievance investigation, fairness of procedures