ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00001513

Dispute  

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              25/06/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker is in dispute with his employer regarding an incident which occurred in December 2022.

Summary of Workers Case:

The Worker’s Union Representative presented the case as follows:

On Christmas Eve and New Year's Eve, special arrangements are made so drivers can be with their families. Local management and drivers representatives agree these arrangements before the Christmas period starts. On Saturday 24th of December, the Worker was rostered to operate a Service from Waterford at 16:40 to Limerick. Waterford management and the drivers representatives agreed locally that there would be a crossover in Cahir, Co Tipperary. When the Worker arrived in Cahir, he expected a Limerick service to be there, to take his passengers so he could return to Waterford. He contacted the supervisor who said they had not been informed of the crossover and instructed him that he must continue on and complete his journey to Limerick.

The Worker tried to engage with the supervisor who was Limerick based and explain the situation and what had been agreed but to no avail. The Supervisor repeatedly threatened him with disciplinary action which could ultimately lead to a suspension or dismissal. The Supervisor cut off communication and would not engage any further. The Worker was essentially stranded in Tipperary at 1900 on Christmas Eve with 10 passengers needing to go to Limerick. eventually a service arrived, one hour later and the Worker explained the situation to the driver and started to transfer the passengers while continuously apologising to the passengers. After this ordeal and how he was treated by the Supervisor, the Worker attended his doctor and after the consultation he received a medical cert for stress. He spoke to his representative in January and explained the situation. The representative then made representations on his behalf to Waterford management on Thursday 19th of January.

The Worker’s representative then followed up with an email on the 8th of February looking for an update regarding the incident on Christmas Eve.   Management responded that an official grievance must be formally lodged.  The Worker officially lodged a grievance against the acting supervisor on 10th of March.   The Employer conducted a formal investigation and it concluded on Monday 15th of May.  The Company representative that conducted the investigation found that an error had occurred and that Waterford management acknowledged and accepted this. The Employer  apologised for the error that occurred and took full responsibility, no disciplinary action was going to be taken against the Worker.

The Worker is a dedicated professional with a commendable track record of 6 years service.   Unfortunately, the incident on December 24th has had a significant impact on him, causing stress and preventing him from returning to work for 10 months. He recounts an interaction with the Supervisor had left him feeling threatened and concerned about the security of his job. This experience has understandably shaken him and he feels that the Employer did not adequately or in a timely manner address the issue. He should not suffer due to the unprofessionalism and misconduct of a supervisor. As referenced in findings in the investigation, quote “As discussed at the grievance hearing, I was surprised that you were showing anger about this incident more than four months later and still on sick leave in relation to this incident”. This reference highlights how much of an impact the incident had on the Worker.  We are formally requesting that the Worker, who has experienced a significant loss of income due to recent circumstances, while also we acknowledge the existence of the Company’s welfare scheme; however, we believe that he should not solely depend on it in this particular situation. It is challenging to determine the precise extent of income loss suffered by him as his earnings tend to vary slightly on a weekly basis. 

Summary of Employer’s Case:

During December 2022, the agreed Christmas arrangements (and operational impacts) were confirmed to the Trade Unions at a local level trade union meeting.

Where there is a deviation to allow a service finish earlier, the arrangements are internally referred to as ‘handover’. i.e. a situation where a driver (from Dublin) operating on a Dublin to Galway trip would operate as far as Athlone only. On arrival in Athlone s/he would then transfer their passengers onto a Galway based driver (who likewise would have travelled from Galway to Athlone only) before operating back to Galway.

The Worker was scheduled to operate a service on the 24th December 2022.

The arrangements for the 24th of December were confirmed (both centrally and locally) in early December 2022 meeting. It would appear to be accepted by all sides (Company & union) that it was agreed that the Worker’s route would operate as far as Cahir only on the 24th of December. This message must have been communicated to the Worker who it can be assumed expected to operate as far as Cahir only, on then return to Waterford with any passengers who had transferred onto his bus.

It is worth noting that the Company website showed the 2022 trip from Limerick to Waterford as operating in full on the 24th December, therefore implying that there was no handover on the Worker’s driving duty. Further, there was no handover on this duty in any other year i.e. pre or post 2022.  

24th December 2022

The Worker departed Waterford as scheduled on the 24th December 2022. At approx. 16:40 he arrived in Cahir in expectation of handing his passengers over to a Limerick based driver. A short period later a Limerick based driver (17:25 ex Limerick to Waterford) arrived in Cahir and when she refused to hand over passengers to him, instead insisting that she would continue her journey.

Contact was made between the Worker and the control centre in Limerick to clarify matters. The Supervisor spoke to the Worker on the evening and advised him that his duty assignment was indeed to continue onto Limerick and thereafter operate the 20:25 service back to Waterford. A conversation ensued, where the Supervisor again confirmed these arrangements to the Worker and requested that he continue operating onto Limerick. The Worker refused to accept this and in an act of insubordinate behaviour turned back to Waterford at that point, leaving passengers stranded on the side of the road.  Given that this was Christmas Eve, his decision had a profound impact on passengers who had intended to use the last bus at 20:25 Ex Limerick. Normal protocol would be to operate the duty ‘under protest’ and resolve the matter there after. If he had done this, he would have booked off in Waterford at 23:05 that night the 24th.

Mr “Redacted” was scheduled off on the 25th, 26th and 27th December, and was allocated one day’s annual leave for the 28th December – due to return to work on the 29th of December.

December 2022 – November 2023

The Worker contacted the Company at 7pm on the evening of the 28th December to advise that he ‘won’t be in for a couple of days and would send on a cert’.   He remained out sick for a period of almost 46 weeks, only returning on the 13th November 2023.

Between December 2022and November ’23, he submitted medical certificates on an ongoing basis – usually every 2 to 3 weeks.  None of the medical certificates stated the exact nature of the illness. 

In November 2023 when he returned to work, local management again attempted to contact him. Despite numerous attempts, he ignored repeated requests and calls from local management. As a result of this behaviour, local management were left with no choice but to travel to Carlow on (05th December 2023) as the only means to engage with him.

Pay

During the period 29th of December ’22 to 15th of May 2023, the Worker was absent from work. During that time he received payment consistent with the Welfare scheme.

Stage B Grievance

The Worker raised a grievance with the Company on the 03rd March 2023.

The grievance was heard on the 05th of April 2023. The very slight delay in progressing this grievance was solely to allow local management to engage with the Chief Medical Officer (CMO) in order to ensure that it was appropriate to progress this matter while the Worker was on certified sick leave.

Very early on in the process, the Manager hearing the grievance received an email from another Manager Mr F who confirmed that ‘he (the Worker) will not participate in any phone call / interview on the matter; however, he would do so by email.’

The Manager hearing the grievance replied that ‘I am reluctant to engage on matters like this via email as quotes can be taken out of context. I feel it is best to speak in person i.e. Teams, phone call or in-person.’

The Worker failed to engage in the process and accordingly the Manager based his decision on the evidence available (i.e written grievance of the Worker, interview with Supervisors and local management. He found that ‘I can confirm that during my investigation I have not found any grounds for this grievance.’

Stage C Grievance

The Worker appealed the decision and the matter was passed onto Manager M to investigate it at Stage C level.

All matters raised by the Worker (7 in total) were all clarified at the outset of this meeting, and a decision on each was contained in correspondence issued on the 15th May.  

It is the Companies position that the Worker’s behaviour on the 24th of December 2022 was inappropriate.  While it is accepted that the trade unions agreed locally of a ‘handover’ arrangement, it is unfortunate that this was in error and contrary to what was agreed centrally.

The correct arrangements were reconfirmed to the Worker on the evening of the 24th December, yet he chose to ignore them and instead operated (out of service) back to Waterford.

The Worker raised this as a grievance in early 2023, which was heard initially in March and then (under appeal) in May 2023. The Employer tried on a number of occasions to contact him, and on 5 December 2023 travelled to meet with him.  He never raised a loss of earnings claim previously, and as demonstrated above, no loss presents.

Conclusions:

The Worker’s grievance was handled to conclusion by the Employer in a correct manner.  I take the point that he may have been better to carry out the duty under protest.  However, in the end, his position was upheld and the appeal succeeded.

In the appeal outcome report, on 15 May 2023, it was stated:

“I understand that the error in relation to the “crossover miscommunication” left you in a difficult situation with customers and this is regretted by (the Company). The error is openly admitted by the local manager, and I apologise on behalf of (the Company) for this error”.

This statement could not be clearer and in normal circumstances this should have resulted in the Worker returning to work.  There was a delay in the Employer making contact with the Worker and I note that it was in December 2023 that the Employer travelled to meet with him.  I find the Worker should take some responsibility for his losses when he did not return to work for some 6 months after the appeal decision issued.

In order to draw a line under this dispute and recognising that both parties should share the responsibility for the delay in returning the Worker to work, I recommend that the Employer offer the Worker the sum of €5,232 representing 6 weeks’ pay at the basic rate.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

In order to draw a line under this dispute, and recognising that both parties should share the responsibility for the delay in returning the Worker to work, I recommend that the Employer offer the Worker the sum of €5,232 representing 6 weeks’ pay at the basic rate.

Dated:   29th August 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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