Worker

Employer

Anonymised Parties

An energy supply technician

An energy supply service provider

Representatives

John Keenan JRK Business Services

E Kavanagh,  Employment Law Solicitor

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 - 00002846

09/07/2024

This dispute concerns the disciplinary process and penalties that were applied by the Employer after the Worker was found to have committed health and safety breaches.

On behalf of the Worker the dispute was set out as follows:

1.       The Worker is a senior energy supply technician who has worked for the Employer for 43 years during which time, no disciplinary action has been taken against him.

2.       On 24 March 2023 the Worker was instructed to do remediation work (isolating a transformer and replacing a low-tension cable with a high-tension cable) in a rural area.

3.       The weather conditions were inclement at the time. Other technicians would have refused to do the work. The Worker is not such a worker and has a recognised history of doing whatever work is required to be done.

4.       On this task, the Worker was accompanied by another technician and two apprentice technicians.

5.       While doing this work a health and safety audit was conducted by the Employer and as a result of this the Worker, who was the most senior employee and was in charge of the operation, was found to have committed a number of health and safety breaches. These were; the failure to wear High Visibility PPE; no control to the entry zone was applied; the failure to dig around a telegraph pole to establish ground stability; no earth tags being applied; the failure to contact office during the task (as required) and not recording the work (via a digital system.)

6.       One month later the Worker was informed that he would be disciplined under the Employer Health and Safety policy.

7.       Nothing then happened until 7 months later when in October 2023 the Worker was told that the disciplinary process would then start.

8.       The disciplinary hearing took place in January and in February 2024 the Worker received the outcome of the disciplinary process. This was that, on the basis of the Worker’s concession that health and safety breaches did occur, he was to receive a warning (that a repeat offence in the future would be treated as gross misconduct) which was operative for 12 months and that he would be suspended without pay for two days.

9.       The Worker brought an industrial relations dispute to the WRC submitting initially that the disciplinary processes were incorrectly applied (no representative and no right to a final appeal) but these submissions were ultimately not proceeded with. At the Adjudication hearing the Worker contended two points:

(a)    That the 7-month delay in the progress of the disciplinary process from April until October 2023 was unfair and punitive in and of itself and

(b)    The sanction of two days without pay was disproportionate and too harsh in light of the Worker’s unblemished work record of 43 years.

10.   The Worker stated that while the warning was due to expire two weeks after the Adjudication hearing, he requested that the Adjudicator recommend that penalty of a two-day suspension be not applied.

On behalf of the Employer the defence (to the dispute) was as follows:

1.       The health and safety breaches that were found to have occurred on 24 March 2023 were very serious offences.

2.       The seriousness of the offences was compounded by the fact that the Worker, who was a senior technician was demonstrating bad practice to two apprentices.

3.       The Worker conceded that health and safety breaches occurred on 24 March 2023 and that he was responsible for them.

4.       The suggestion that the breaches were not significant is denied. Some were more serious than others but any one of them could have resulted in or contributed to injury being sustained. The system controller not being contacted was a serious breach. Tapping the ground at the telegraph pole instead of digging it to check ground stability was a serious offence. Failing to record the work was a serious offence. These matters could not have gone on unchecked.

5.       While the delay of 7 months in the disciplinary process should not have occurred, the disciplinary team apologised to the Worker and after October the Worker could have opted for a December hearing date but chose to delay it until after Christmas.

6.       The outcome and sanctions that were applied by both the disciplinary decision maker and the appeal decision maker were entirely within a band of reasonable responses to the findings made against the Worker, all of which he accepted.

7.       There is no basis upon which the WRC should interfere with the sanctions that were applied.

8.       It is incorrect to argue disproportionality of sanction

9.       It is incorrect to suggest that the Worker’s good record of 43 years was not taken into account. The decision and the appeal both refer to his years of service. Without his long and, it is accepted highly committed and valued years of service, the disciplinary action and sanction could have been much greater.

10.   The safety of workers and members of the public is the paramount consideration of the Employer.

11.   The actions of the Worker, if repeated (and they have not been since) could have resulted in injury, either to himself or to his colleagues. The seriousness of the offence cannot be diluted, even, taking into account, his exemplary work record, which is accepted.

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

The findings of the Employer that the Worker committed health and safety breaches were accepted by the Worker, therefore I have no basis to interfere with these findings.

Given the findings against him, I am satisfied that the Employer’s disciplinary policy permitted the sanction (a warning and two days suspension without pay) to be applied. I am satisfied that the sanction that was applied fell within a band of reasonable sanctions that the Employer was permitted to apply and was entitled to apply.

Therefore, I have no basis to find the sanction that was applied was disproportionate.

I am satisfied that his long and dedicated service to the Employer was taken account of when reaching this decision. However just because a person has many years of successful and committed work, which is not disputed, does not mean that he is immune from offending, from which disciplinary action may follow.

However, I am unhappy with any disciplinary process, particularly one in which the Worker accepts wrong-doing (which reduces the time and effort that it takes to conduct the disciplinary process) if any unnecessary delay occur. The delay in this matter was for a period of 7 months (from April to October 2023.) And a change of disciplinary guard is not a good reason.

When a worker accepts wrongdoing, this should be accepted with the grace that the admission given and any delay in applying a sanction exacerbates the sanction. I have no doubt that the looming but non progressing disciplinary process would have weighed heavily on the Worker over that 7-month period. I have no doubt that, until this incident, the Worker would have had good reason to be proud of his 43 committed and unblemished service record and the puncture of that must have been difficult for him. It was not unreasonable for him to expect that the outcome, given that he admitted the offences, would have, at least, have been efficiently applied. 

I am satisfied that while the disciplinary process complied with the terms of the Employer’s disciplinary policy and that the sanction was within a band of findings that was reasonable for the Employer to reach, a delay of 7 months is not envisaged or permitted by the Employer’s disciplinary policy. I find this delay to be inordinate and unfair.  In this respect (and this respect alone) I find that the Employer’s disciplinary policy was not followed.

In respect of the delay, I find this dispute to be well founded, but in all other respects of this dispute I do not so find.

I award the Worker €250.00

Health and Safety breach dispute – delay in disciplinary process