Worker

Employer

Anonymised Parties

A Worker

A Parking Services Company

Representatives

Joseph Ateb SIPTU

Katie Nagle B.L. instructed by  Addleshaw Goddard Solicitors 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 - 00001889

17/10/2023

The Worker commenced employment with the Employer on 15th January 2001 and he retired in February 2024. At all material times he was employed as a traffic controller engaged with a partner in the removal of illegally parked vehicles from an assigned location. Following an incident which occurred on the XXX the Employer undertook an investigation and disciplinary process against the Worker which resulted in the imposition of a 2nd Stage Written Warning to remain on the Worker’s personnel file from the 4th July 2023 for nine months. The Worker exercised his right of appeal and by undated letter the Employer communicated to the Worker the decision to uphold the original sanction imposed. The Worker referred the within dispute to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 17th October 2023.               

The Worker started working for the Employer in January 2001. He worked a staggered shift pattern and was employed on a full time basis. He worked in different roles over the years and his most recent role was that of an On-Board where he and a driver removed illegally parked vehicles within their assigned location.

On the XXX, while carrying out his duties with his partner, who was driving the tow vehicle, a vehicle was observed illegally parked. The Worker proceeded to exit the truck, carried out his required checks of the vehicle and the vehicle was then removed on to the towing truck and relocated to the designated location. At the location it was discovered that there was a child in the back seat of the vehicle.

By letter dated the 25th May 2023 the Worker was invited to a Stage 1 Disciplinary Investigation Meeting. On the 22nd June 2023 the process was then escalated to a disciplinary stage. By letter dated the 4th July 2023 the decision to impose a nine month sanction was communicated to the Worker. By letter dated the 10th July 2023 the Worker invoked his right of appeal. The appeal hearing was held on the 12th July 2023 and in an undated letter addressed to the Worker the decision was reached not to uphold the Worker’s appeal.

It was submitted on behalf of the Worker that he was treated unfairly as the result of the incident. The Worker contended that he was singled out and punished due to the fact that there had been a few cases of clamping and/or towing vehicles where children were later discovered to be inside the vehicle. According to the Worker these issues had generated a lot of public outcry in the media and on social media spaces and the Employer was scrambling to deal with these public outcries. The Worker contended that his colleagues involved in similar infractions were not treated as harshly as he was. The Worker further contended that he worked as a team with the driver but that he alone was singled out for punishment and he believed that this was unfair to him. Finally the Worker contended that he followed all internal company procedures and that the procedures he was punished for were only introduced by the Employer post incident.

The Worker stated that the incident and subsequent disciplinary procedures had been very stressful for him and his family and that his GP had certified him unfit to work due to stress.

It was submitted on behalf of the Worker that the manner in which he was treated was unacceptable from an employer the size and import of the Employer. The Employer never considered a lesser sanction particularly given the Worker’s length of service. It was submitted that sanctions are meant to be progressive in nature and by design and that the sanction imposed on the Worker was neither of these; rather the sanction was a reactive response in the face of “the trial by media” the Employer was facing at the point in time.

The Worker sought a rescission of the sanction imposed on him and some form of compensation for the stress the ordeal had and was continuing to have on him.

According to the Employer a serious incident occurred on the XXX when a child was discovered in the back of a vehicle which had been lifted and resited by the Worker and his partner. According to the Employer, if proper procedures had been followed by the Worker the incident could have been avoided in its entirety.

The Employer submitted that at all times the Worker was afforded fair procedures. The Employer’s dispute and grievance procedures are defined pursuant to an agreement dated the 14th July 2000 between the Employer and the Worker’s Union SIPTU (hereinafter referred as the “2000 Agreement”) and these were implemented and followed.

The initial investigation phase was undertaken by the Operations Manager and was in accordance with Section 11 of the 2000 Agreement. The Worker was given notice of each meeting and was informed of his right to attend and to be accompanied by a representative. He was told of the allegation, that he failed to comply with company procedure, in advance. At the meeting, he availed of his right to be attended and was given the opportunity to explain what happened on the day in question. The Operations Manager asked questions of the Worker to ensure that he had a full understanding of the situation. A detailed note was taken of the meeting. When the Operations Manager issued his investigation report, a copy of same was forwarded to the Worker. It was submitted that this initial investigation phase was properly conducted and fair procedures were clearly afforded to the Worker.

When the Operations Manager determined that there had been a failure to show due diligence, the process moved onto the disciplinary procedure. Once more the Worker was given notice of the meeting with the Chief Operating Officer/Chief Financial Officer, of his right to attend with a representative and was informed of the date and time. The allegations were outlined in advance. The Chief Operating Officer/Chief Financial Officer heard and determined the facts before her in accordance with the disciplinary procedure set out in Section 12 of the 2000 Agreement. Detailed minutes were taken. Having heard from the Worker and acknowledging that he had suffered following this incident, the Chief Operating Officer/Chief Financial Officer determined that the appropriate sanction was a 2nd Stage Written Warning which would stay on the Worker’s file for nine months. Again, the Worker was afforded fair procedures.

Exercising his right of appeal, which further highlights the fair procedures followed by the Employer the Worker appealed to the HR Manager on the 10th July 2023. He outlined four main grounds of appeal, each of which were considered by the HR Manager in his decision. The HR Manager also answered specific questions which were asked by the Worker and detailed his responses in his decision letter. The Worker was entitled to review the notes taken by the note taker and to provide input to ensure they accurately reflected the meeting before the HR Manager.  

The Employer denied that there was a “trial by media”. The Employer correctly engaged with its own disciplinary process after the incident as set out in Sections 11 and 12 of the 2000 Agreement. Investigations were undertaken in relation to the Worker and his partner. While different sanctions were imposed, the Worker was not singled out. The Worker was also kept fully appraised of the ongoing situation.

While the Worker might believe that the sanction issued was unfair or disproportionate, at all times he was afforded fair procedures during the course of the investigation and disciplinary procedures. The process resulted in a sanction which was considered and reasonable in the circumstances given the serious nature of the incident. Each of the decision makers were aware of the impact the event had on the Worker and considered it in their decisions. The Employer took account of the mitigating factors raised by the Worker.

On appeal the HR Manager specifically stated that he had carefully considered all of the facts presented to him. It was submitted that each of the mitigating factors were considered by the HR Manager and he determined it was reasonable after careful consideration to uphold the 2nd Stage Written Warning.

The Employer stated that in light of the incident additional safeguards were put in place to help prevent any reoccurrence of the issue. The Employer submitted that it should not be faulted for updating its procedures and providing further reminders to its staff after such a serious incident.

On the day of the incident when the Worker returned to the office he was offered counselling to ensure that he received any help he might require. The Employer also wanted to ensure that the Worker was fit to return to work. This was confirmed by way of a letter from the Worker’s GP dated the 27th July 2023.

The Employer submitted that the seriousness of the incident could not be forgotten and the imposition of a 2nd Stage Written Warning was reasonable and proportionate in all the circumstances and that no recommendation ought to be made pursuant to section 13 of the Industrial Relations Act 1969.

In conducting my inquiry, I have taken into account all relevant information presented to me by the Parties.

In February 2024 the Worker retired from his employment with the Employer. On the 3rd  April 2024 the Worker’s Second Stage Written Warning expired. The Labour Court has found on many occasions that a warning which no longer exists cannot be expunged. At this time the warning has expired and is moot. In circumstances where the written warning no longer exists and given that the Worker retired in February 2024 and is no longer employed by the Employer I recommend that the Worker and the Employer move on from the dispute.

While the Employer confirmed that the Worker’s personnel file had been archived the Worker expressed concern that despite his retirement the documentation relating to the incident, investigation, disciplinary and appeal procedures would remain on his personnel file after the written warning had expired. I therefore recommend that if the Employer has not already done so that the letter of warning and all documentation relating to the incident, investigation, disciplinary and appeal procedures be removed from the Worker’s personnel file.