Case Number: ADJ-00001039. Workplace Relations Commission
| Docket Number | ADJ-00001039 |
| Date | 07 June 2016 |
| Court | Workplace Relations Commission |
| Parties | A Worker V An Employer |
Adjudication Decision Reference: ADJ-00001039
Dispute for Resolution:
|
Act |
Dispute Reference No. |
Date of Receipt |
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Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1946 |
CA-00001493-001 |
15/12/2015 |
Date of Adjudication Hearing: 01/03/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 , 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 evidence relevant to the dispute).
Complainant’s Submission and Presentation:
The complainant worked as General Operative at a Drinks Factory from 2006. In September, 2015, he was promoted to a Level Three Operative and worked a 39 hour week.
His claim before the WRC is that he received a verbal warning from the respondent on 13 October, 2015, which was upheld on appeal on 18 November, 2015. He sought the removal of the warning from his file.
The complainant submitted that the respondent had not raised any issues regarding work performance with him prior to this episode.
The complainant worked in a “Salt Filling Room” which produced labels for the product via an “InTouch screen”. Over a three day period, 5-7 October, 2015, the labelling system encountered some difficulties. On, Monday, 5th October, the system malfunctioned on 200 occasions during the complainants shift. On Tuesday, 7th Oct, the system operated without incident.
On Wednesday, October 7th, the system began to malfunction again, causing the complainant to alert his technical co-ordinator; JO'S that it was frustrating in the works area. JOS reviewed the malfunction and left. The complainant then tried to activate the labelling system again himself by double tapping the screen, which prompted the screen to crack. The complainant reported this development to JOS who told him to go home at approx. 16.30 hrs just before his shift was due to conclude.
This prompted an investigation of the event by an Assistant Supervisor, JR. which was followed by a disciplinary hearing on October, 12th, 2015. The complainant contended that fair procedures were not followed in this matter as:
1 Neither JR nor JOS was asked by the respondent to furnish a statement of their version of events.
2 JR, as the complainant’s supervisor was overly close to the incident of Oct 7th and ought not to have been a member of the initial Disciplinary Hearing.
3 The labelling machine was always breaking down and the Complainant did not punch the screen in frustration.
4 The respondent had not disciplined other workers when two screen breaks had occurred previously.
5 There was a spare screen available.
The complainant believed that a verbal warning sanction was unwarranted and appealed on October 20th, 2015. On November 18th, the decision on the verbal warning was upheld by the respondent and accompanied by an “unwarranted reference to the complainants behaviours and the company having a duty of care to your co workers”
The Complainant sought the removal of the verbal warning at the hearing.
Respondent’s Submission and Presentation :
The company is a large multinational which employs over 650 employees in the South of Ireland. The respondent refutes the claim made by the complainant on the grounds that the company has treated the incident very seriously. They do not accept that the complainant’s actions were accidental.
On 30 September, 2015, there were some issues with the label detection process that the complainant was working on. JO’S, in his capacity of manufacturing senior co coordinator assisted the complainant. JO’S was recalled to the room by the complainant to be told that the screen cracked when the complainant “had punched the screen”. Following further probing, JO’S was informed by the complainant that he had put his two fingers through the screen in frustration as the label detection had been causing issues during the run off. He sent the complainant home and finished the process.
On 1 October, 2015, JR, Manufacturing Assistant Supervisor approached the complainant to seek an explanation for the events which led to the machine being damaged. He was informed that the complainant had hit the screen following his frustration with a series of machine malfunctions. JR was not pleased with the account of the antecedence of events which prefaced the “crack “on the machine and he registered this displeasure with the complainant. He also enquired whether any mitigating factors were evident and. The complainant denied same.
JR told the complainant that the matter would now move to a disciplinary investigation.
On October 9th, The HR Co coordinator invited the complainant to a disciplinary meeting on October 12th hosted by VL and JR. He was permitted representation and advised that “the hearing would consider disciplinary action with regard to the damage sustained to the in touch Screen, following an investigation into same.” A copy of the Investigation report and disciplinary policy were attached.
The meeting occurred on October 12th and the complainant was represented by PC, Shop Steward. The complainant stated that he had not applied excessive force to the screen and the action was not done on purpose in response to the furnishing of the allegations from the respondent.
The next day, the respondent issued a verbal warning to the complainant and a direction for him to attend refresher training in the company code of conduct.
This was appealed by SIPTU on October 20th, 2015 on the grounds of
1 Circumstances relation to matter in hand
2 Procedures
3 Proportionality
4 Severity of Sanction
The appeal meeting was held on November 9th, 2015 by CA, Manufacturing Manger and DP, Hr Manager.
On November 15th, HR interviewed JO’S regarding his recollection of events of September 30th.
“Met with JOS and asked him to go through his recollection of events. J was clear in his account , he went to the room to help the complainant as he was having problems generating labels, he left room briefly, he was called back by complainant who said to him, look at this, Complainant showed him the broken screen and complainant said to him that he had punched the screen “
On November 23rd, the outcome of the appeal upheld the first Disciplinary Hearing Committee sanction.
The Company submitted that the complainant had sought the Adjudicator to assess the claim on the sole grounds of severity and therefore the arguments on fair procedures had no standing in that regard.
The company was clear, however, that fair procedures had been consistently applied to the complainant in the case through:
1 Right to representation
2 Informed of allegations
3 opportunities to state his case
4 Informed of the possible outcomes of the disciplinary hearing
5 Right of appeal
They argued that the respondent was obliged to take the action they did in light of the harm done to the property of the firm and the permitted parameters for such approach throughout the company procedures agreed with the Union. The damage caused cost €3,702 to replace the screen and the complainant was not expected to cover that cost; neither would his bonus payment scheme be affected...
The respondent wanted to impress on the adjudicator that any review of the sanction in this case should take account of an upward alignment to one of the higher sanctions permitted . They contended that they were acting under the umbrella of a reasonable employer and viewed the sanction as “extremely lenient “when all circumstances were taken into account.
In conclusion, the company was clear that that the sanction would expire through natural attrition on the 13th April, 2016, 6 weeks post the hearing date.
Case Law relied on:
Looney v Looney, UD 843/1984
Findings of Adjudication Officer ....
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