Worker

Employer

Anonymised Parties

A Plant Operator

 A Company

Representatives

Victoria Stephens, SIPTU

David Pearson, J W O'Donovan LLP

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 - 00000846

11/11/2022

On 11 November 2022, the Workers Union, SIPTU filed a dispute on behalf of the Worker, a Plant Operator, with the WRC for Investigation. The dispute concerned a written warning applied in a disciplinary setting which the worker contended was unnecessary. A Parallel proceeding of Personal Injuries is in being.

The Employer operates a large business and has disputed the claim by stating that the disciplinary measure applied was just and fair arising from a workplace staff management agreement.

Both parties were represented and both parties submitted written submissions.

A Preliminary Issue on a request to postpone the hearing arose from the Employer at the outset of the hearing.

Towards the end of the hearing, I requested sight of the foundation incident form relevant in the case. This was helpfully provided by the Employer on July 27, 2023, and shared by them with the Union for comment.

I did not receive further commentary from the Union post hearing.

The Union, on behalf of the Worker, a Plant Operator took issue with the application of a first written warning on his file in respect of a n incident at work on? June 6, 2021.

The Worker came into work on overtime on that day and collided with a barrier unexpectedly.

Response to Preliminary Issue:

The Union argued that the WRC operated an Industrial Tribunal and was not a Civil Court. The case was not an assessment of personal injuries but an investigation into the circumstances surrounding the application of a first written warning and the principles to be relied on were “fair and just “.

The Union saw no reason to defer the hearing.

Substantive Case:

The Worker has worked as a Plant Operator from 24 June 2014 and has approached this case against an “excellent record “

The Worker seeks a removal of a written warning applied in respect of events at work on Sunday, June 6, 2021. The warning stands expired.

On Sunday, June 6, 2021, the worker attended work on overtime, had an accident at work, while driving a forklift. He required treatment at hospital and commenced sick leave until September 2021.

The nature of the accident was a collision with a barrier. The worker contended that there was a shutter error. He was aggrieved that he was sent to Hospital alone in a taxi.

The Union confirmed that complaints were notified to the Worker on 18 September 2021

The Employer commenced a Preliminary investigation into the accident in October 2021. By 10 December 2021, he was found to have breached health and safety and placed others at risk.

The Union contended that the worker had been accused of a deliberate breach, but this was denied by the Employer.

The Worker is aggrieved at the disciplinary sanction as he maintained that this mistake had occurred within 6/7 operators previously without sanction.  There was no training during 2021.

The Worker contended that the accident was a momentary lapse rather than neglect.

The Union expressed a disappointment in how the worker failed to receive a duty care from his employer on the day of the accident. The Employer delayed in launching an investigation and by then it was termed a “disciplinary investigation “and was predetermined.

The Union pointed to the anomaly in their sanction of the worker “for failure to adhere to rules and regulations, or policies and procedures “whilst allowing him to drive the forklift without a valid licence.

The written warning of 9 months duration was issued on 16 March 2022. This was appealed by the Union on 21 March 2022.

The appeal was heard on 27 May 2022 and a decision followed on 3 October 2022.

The Union pointed to five flaws which were prejudicial to the worker during the investigation.

1 failure of the company to clearly identify what the worker is alleged to have done.

2 Mitigation

3 Lack of proportionality of sanction

4 Failure to provide requested documentation.

5 severities of sanction

The Union outlined that the worker was aware of the expiration of the sanction, however, he wanted it noted on his file that the warning was unwarranted.

The worker confirmed that he had responded to the draft report.

The Union drew on an EAT case of Kelly v Power Supermarkets ltd (M1425UD 428/89 [1990] ELR 141, which found that the claimant in that case had been unfairly dismissed arising from a disparity in the application of disciplinary action with a colleague in similar circumstances.

The Worker is currently back at work in a different role and has received training. He expressed a concern that the management of the occurrence on 6 June 2021 may act as a site wide disincentive to report untoward events. He said that he felt in danger of losing his job but had triumphed over that fear since.

The Union made a number of submissions on the IR 1 form relevant to the incident and whether it had been submitted to the Health and Safety Authority.

The Union acknowledged that the invitation to the investigation had a disciplinary header which was removed prior to engagement.

The Employer operates a large Company with 1300 employees across a number of sites. It operates a 24/7 basis for 42 weeks every year.

The Worker was one of 7 Operators in the stores on 6 June 2021. The Plant is highly automated and has thirty-three operators employed. He drove both high reach and counterbalance forklifts.

By way of background relevant to the claim, the Company representative referred to the launch of the “Company zero harm health and safety programme to drive improvements in the health and safety culture across the Company. This had yielded positive results as manifested in the 2022 statistics versus 2021.

43% reduction in total accidents

56% reduction in lost time accidents

In addition, the March 2021 Pay Agreement concluded on a three Union consensus to give their members full co operation and participation in the “Zero Harm programme “

“An absolute commitment to engage fully with the delivery of a Zero harm programme across the X Organisation “

This remains a priority for the Company.

Preliminary Objection:

The Employer submitted that the complaint was statute barred on foot of the relevant incident occurring on 6 June 2021.

The Company investigated the incident on the workers return to work post sick leave. He was issued with a first written warning on 16 March 2022, since removed from the employment file. The Employer argued that the complaint was moot.

This Dispute was filed on 11 November 2022, some 7 months and 26 days after the written warning was issued. This rendered it outside of the statutory time limits provided in Section 41(6) of the Workplace Relations Act, 2015 and could not be aided by the provisions of section 41(8) of that same Act. The Union had not demonstrated reasonable cause.

In addition, the Worker has filed High Court proceedings claiming negligence, breach of contract and a breach of statutory safety health and welfare at work duties on 27 September 2021. These proceedings arise out of the same set of circumstances.

The Employer representative outlined that the case was due to be listed at the High Court and it had come first in time before the claim before the ~WRC. He argued that the case should be deferred post hearing of the High Court case.

He outlined that pressing on with the IR case would compromise his clients as evidential aspects were properly directed at the Personal Injuries case.

Substantive Case:

The Employer defended the reasonableness and proportionality of the written warning and argued strongly and cogently that the Respondent was not “at fault “.

It was the Employers case that the procedures laid out in the Joint Procedural Agreement, Company / Union were followed. All stages were conducted by separate parties, based on natural justice and fair procedures.

Investigation:

The Site Manager, Mr A and HR Business Partner, Ms A conducted the investigation 11 October -12 November 2021, where the worker was represented by his Union.

1 Breach of environmental Health and Safety regulations likely to cause damage to oneself or others.

2 Engaging in dangerous practice which caused to endanger his own safety.

The findings issued in draft form on 10 December 2021. The Worker did not avail of the opportunity to draft a response prior to sign off.

1 worker distraction was not a contributory factor for the incident occurrence. There was a lapse in concentration.

2 worker was in control of the vehicle.

3 workers understood his role and had completed training in forklift safety code.

4 worker “showed a serious breach of the rules of the company which caused serious injury to himself and may have caused harm to another. The investigation panel therefore is of the view that he failed to adhere to the Safety Statement by not complying with all safety and health rules and procedures in his area. He was not working safely and thinking of others “

5 workers actions constitute failure to adhere to the rules and regulations or the policies and procedures of X by engaging in dangerous practice which caused to endanger his own safety.

The matter was referred through to the Disciplinary Procedure.

Disciplinary Process: 

This occurred 19 January -31 January 2022:  and was conducted by Mr B Production Manager and Ms B, HR Manager)

The Worker was represented by two Union Reps.

The outcome issued on 16 March 2022 and found that the workers behaviour was in breach of environmental health and safety rules and regulations which resulted in his personal injury.

A first written warning of 9 working months followed.

Appeal Process 21 March 2022-3 October 2022

The Appeal hearing occurred on 27 May 2022 and was conducted by Ms C and Mr C, Head of finance. The worker had the same two reps as at Disciplinary stage.

The Appeal outcome upheld the earlier sanction of first written warning as “merited and proportionate “

The Employer representative contended that this matter was dealt with fairly by the Company and the warning was now spent.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Preliminary Issue, Industrial Relations Claim:

I heard both parties on this Preliminary Issue. I drew the parties  attention to the voluntary nature of Industrial Relations at third party level. I drew the attention of both parties to the record of the Employers agreement to attend this hearing dated February 20, 2023. I explained that I had no intention of allowing the hearing in an IR matter to be caught in the crossfire for Litigation properly directed at the High Court

I sought to understand just when the High Court proceedings were initiated and learned this occurred on September 27, 2021. the Statement of Claim/ summons was exhibited.

I explained to the parties, while  having heard a request to defer the IR case, held in private and where parties are anonymised that I was confident that with the co -operation of the parties that I could safely navigate my way through this case.

I emphasised the subject of my investigation was the Procedural framework surrounding the application of the first written warning on 16 March 2022.

A Trade Dispute id defined in Section 3 of the Industrial Relations Act, 1946 as:

“Trade dispute” means any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment, or the terms of the employment, or with the conditions of employment, of any person and includes any such dispute or difference between employers and workers where the employment has ceased,

Claims taken under the Industrial Relations Act are not subject to Schedule 5 of the Workplace Relations Act 2015.

I now add that this claim is in time as the Section 41(6) and Section 41(8) of the Workplace Relations Act, 2015 are not applicable to this case. The case is taken as a Trade Dispute, in a live employment setting and is not troubled by the strict time limits referred to above.

The purpose of an Investigation under the Industrial Relations Act 1969 is to establish whether a Recommendation can be made to both parties on foot of an investigation of a Trade Dispute.

It is traditionally a relatively informal, but very helpful process and is not subject to judicial review. Instead, as Adjudicators, we call on our experience of the workplace to seek to construct and recommend a blueprint for the way forward for both parties.

If it is possible, we try and resolve the Dispute through the prism of fairness and reasonableness.

The provisions of section 13 of the Industrial Relations Act, 1969 are.

Rights commissioners. / Adjudicators since October 2015

13.— (1) …….

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth her opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

……

(6) A rights commissioner may provide for the regulation of proceedings before him in relation to an investigation under this section and may provide for the cases in which persons may appear before him by counsel or solicitor and, except as so provided, no person shall be entitled to appear by counsel or solicitor before him.

……

(8) An investigation by a rights commissioner shall be conducted in private.

(9) (a) A party to a dispute in relation to which a rights commissioner has made a recommendation may appeal to the Court against the recommendation and the parties to the dispute shall be bound by the decision of the Court on the appeal.

(b) The Court shall hear and decide any appeal to it under this subsection and it shall convey its decision thereon to the parties.

(c) A hearing under this subsection shall be held in private.

(10) The Court shall not investigate (except by way of appeal to it under subsection (9) of this section) a trade dispute in relation to which a rights commissioner has made a recommendation.

 I have assessed this case as a first written warning applied in a Disciplinary setting. I have no opinion on the Personal Injury aspect of the case, and neither can this case be viewed as a dress rehearsal for that forum by either party.

The Worker, through his Union, has approached this case believing that he was wronged by the Company he had been loyal to. He said that the sanction was disproportionate and out of synch with how other colleagues with similar incidents had been treated.

The Employer approached this case, having conducted an investigation, disciplinary procedure and appeal in which they were comfortable and stood over as fair and proportionate.

The matter of “Zero Harm Programme “forms a sub plot in the process. While the Employer contends that the Programme was embedded in the Pay Agreement for 2021, they have also heralded the positive results during 2022 onwards.

For me this programme is relevant in this case. I accept it as an Employer priority but note that the worker was simply not au fait with the centrality of this agenda. I looked for reasons for this and found that co -operation with the Zero Harm Programme was bedding down from June 1, 2021, onwards.

It appears that the incident of June 6, 2021, arose in the early days of the incorporation of the Zero Harm Programme into the day-to-day life on the Plant. It did not form a header in the Investigation .

The Union emphasised the IR 1 form to the Health and Safety Authority, but for me any assessment of the disciplinary framework must commence with an Incident report.

I have reviewed this Incident form dated 11 June 2021, which seemed to be an accurate capture  of the event. I found it unusual that the worker was not a contributor to this report.

I was struck by the employer commitment to follow on with an investigation under the health and safety officer. Details of this, if completed were not submitted.

The Worker was on sick leave immediately after the incident and was invited to a workplace investigation dated 23 September 2021.

I understand that this was initially titled Disciplinary Investigation Meeting, but following representations was edited to Investigation Meeting invite. Given that the worker had decided on a personal injuries action at that point and given that this incident seemed to occur in the early days of the plant prioritisation of Zero Harm, I would have thought it prudent that the Union would have sought clarity on what exactly was being investigated.

I found a lack of clarity in the letter dated 16 September and this goes along way to understanding the workers bewilderment with the nature of the investigation when it occurred. He described it as forensic and probative, and I am clear that he had no idea that it evolved as a remedial action under Zero Harm.

I am not satisfied that allegations which arose at the conclusion of the investigation   were not constructed and put to the worker by his employer in advance of the investigation.

The Investigation was conducted by a Site Manager and not the EHS officer referred to on the Incident report.

I am at a loss to understand the December 10, 2021, draft investigation report which minutes.

The Investigation covered breach of environmental, health and safety regulations likely to cause damage to oneself or others and engaging in dangerous practice which caused to endanger own safety.

I could find no discernible reason why the proverbial cart came before the horse on this occasion.

However, I found that the Worker did not give sufficient attention to the Investigation draft report when he refused to respond to it in preference to his Solicitors response.

Once more, I  see the overlap of the personal injuries case at play here.

I have not been provided with a response from the Workers Solicitor, if any  to the draft report of December 10, 2021.

I must, therefore, conclude that a failure to respond to the employer at this crucial point where the next step might have been positively influenced by such a response, amounted to a cardinal error on his behalf. The Investigation report which fed into the disciplinary and appeal procedures went unchanged.

It was open to the Union to pause the process to secure allegations or at a very minimum what exactly was being investigated.

I found the duration of the process to be excessively long, and that delay was not caused by the worker.

The Worker was aggrieved that notification of the appeal issued during his sick leave. I found this a rather unrealistic viewpoint.

In my opinion, the process did not recover from the investigation stage of this case, and I attribute a shared responsibility on both parties for the mistakes made at that juncture.

Overall, I found that the launch of the Zero Harm Programme and consequences for deviation from the programme were not made clear to the worker. He was unaware that from June 1, 2021, that he stood at an enhanced risk of exposure to the Disciplinary procedure for workplace safety transgressions.

 I did not discover a new protocol on managing workplace incidents arising from Zero Harm but would suggest that the company give some consideration to obtaining a chaperone for hospital visits post injury at work.

I accept that the worker holds the view that this approach may well result in an underreporting of incidents, but that is a matter for a workplace discussion.

Having considered all aspects of this case, I find that the worker unwittingly entered a new regime of zero harm on June 6, 2021.

He was not asked for his version of events to populate the incident form. The periods around completion of investigation, disciplinary process and appeal were far too long, notwithstanding periods of site closure and illness.

I found the overlap of personal injuries claim with a corresponding workplace investigation was confusing for the worker.

I would have preferred if the employer had concluded their commitment to investigate the issue locally as referred to on the incident form rather than an elevation to a disciplinary process some 3-4 months after a fracture sustained at work.

I would have liked to have seen more compassion in this case rather than the defensiveness I found in both parties.

The Worker, through his Union has carried a disbelief and anger throughout the procedure which commenced in September 2021.

The Employer, through their representative has equally carried a disbelief that the parameters of Zero Harm, enshrined in a Union Agreement were not understood and honoured.  

For me, it is a regrettable turn of events in a long-standing employment. I cannot escape the viewpoint that the worker was first onto the stage of an agreed zero harm programme, and he became an unwitting casualty of that process.

I have found some merit in this dispute.

Disciplinary Procedure / Severity of Sanction