Labour Court Database __________________________________________________________________________________ File Number: CD86754 Case Number: AD8690 Section / Act: S13(9) Parties: DEPT OF DEFENCE - and - FWUI |
An appeal by the Department of Defence against a Rights Commissioner's Recommendation No. CM/17023 concerning disciplinary action taken against a worker.
Recommendation:
5. The Court has considered the further submissions made by the
parties and decides that the Rights Commissioners Recommendation
should stand.
Division:
Text of Document__________________________________________________________________
CD86754 THE LABOUR COURT AD90/86
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
APPEAL DECISION NO. 90 OF 1986
Parties: DEPARTMENT OF DEFENCE
and
FEDERATED WORKERS' UNION OF IRELAND
Subject:
1. An appeal by the Department of Defence against a Rights
Commissioner's Recommendation No. CM/17023 concerning disciplinary
action taken against a worker.
Background:
2. The worker concerned was employed by the Department of Defence
as a civilian clerk in the Pay Office No. 1 Maintenance Company,
Corps of Engineers, Curragh Camp from 29th March, 1982 to 4th
August, 1986. Prior to taking up this post he had served 27 years
in the army. Part of the duties of the civilian clerk is the
compilation of daily attendance records in a Time-Book based on
information supplied by the foreman of each section. These in
turn are sent to the Civilian Pay Section of the Department of
Defence who compile the weekly pay role after deductions for
absences, based on these records, have been made. Following the
discovery of irregularities, an investigation was carried out by
the Garda Siochana assisted by the Audit Board Department of
Defence to cover the period 27th June, 1983 to 13th July, 1984.
The irregularities resulted in civilian employees being overpaid
for hours they did not work. The overpayments arose because the
records in the Time-Book did not accurately reflect the foremen's
daily reports. A subsequent audit of the time keeping records
from 1st February, 1979 to 13th July, 1984 resulted in the
overpayments made to the civilian employees being revised upwards.
After the audit had been completed the question of disciplinary
action against the civilian clerks (there were two employed in the
Pay Office) was considered. Following meetings between the worker
concerned, at which representatives of his Union attended and
officers of the Department he was informed that it had been
decided to take disciplinary action against him. He was demoted
to storeman Grade A with effect from August, 1986, which resulted
in his weekly pay being cut. The Union referred the case to a
Rights Commissioner on 4th September, 1986. The Rights
Commissioner issued the following recommendation:
"The worker believed that he was obliged to act under the
instructions given to him and when he became concerned at
what he realised were irregularities he brought them to the
attention of a superior. Up to that stage he acted
responsibly and reasonably but then he continued to operate a
system which he at least suspected was irregular. That is
the only misdemeanor I can ascribe to him although it must be
appreciated that, having made his concern known, he believed
he had done all he could as a subordinate.
Permanent demotion is therefore an excessive penalty so I
recommend he be restored to his former grade from 29th
September, 1986 but his duties are to be at the discretion of
Management."
The Department of Defence appealed the recommendation to the
Labour Court under Section 13(9) Industrial Relations Act, 1969.
A Labour Court hearing was held on 31st October, 1986.
Department's arguments:
3. (i) The normal disciplinary action in a case of this nature
which resulted in overpayments of public funds would be
the dismissal of the employee. In this case however,
the Minister having considered the representations made
by the Union on behalf of the worker concerned took a
lenient view and decided not to dismiss him but instead
to remove him from the post of clerk and to place him in
another position.
(ii) At the hearing of the case before the Rights
Commissioners the worker claimed that he had reported
the matter to his superiors early in 1983 when he became
aware of the irregularities. This conflicts with
evidence given earlier by him in June, 1986. At a
meeting in the Department of Defence on 4th June, 1986
he said
"In February or March, 1984 I reported to my superior
that I was concerned about certain procedures that were
in operation in the Pay Section.'
He repeated this at a meeting held in the Department of
Defence on 24th July, 1986.
(iii) The claim by the worker that he was acting under
instructions and obeyed them does not, even if conceded,
confer any justification on him to make false entries in
the Time-Book which resulted in overpayments to civilian
employees in the unit.
Union's arguments:
4. (a) The worker performed his duties to the best of his
abilities from March, 1982 until August, 1986, under the
direct supervision of the other civilian clerk and his
superior officer.
(b) The worker when he noticed the irregularities in
February, and March, 1983 pointed them out to his
superior officer. He was not told to change anything.
As a man who had a long service in the army and used to
taking orders he carried out the instruction given.
(c) He requested a transfer at that time, but heard nothing
until he received a letter on 17th April, 1986,
informing him that because of the irregularities which
had arisen it was proposed to take disciplinary action
against him.
DECISION:
5. The Court has considered the further submissions made by the
parties and decides that the Rights Commissioners Recommendation
should stand.
~
Signed on behalf of the Labour Court
John O'Connell
___________________________
Deputy Chairman.
17th November, 1986.
M.D./J.C.