Labour Court Database __________________________________________________________________________________ File Number: CD8930 Case Number: AD8922 Section / Act: S13(9) Parties: NORTH WESTERN REGIONAL FISHERIES BOARD - and - IRISH TRANSPORT & GENERAL WORKERS' UNION |
Appeal by the Board against Rights Commissioner's Recommendation ST413/88 concerning the suspension of a worker.
Recommendation:
7. Having regard to the submissions made by the parties, the
Court is satisfied that the Rights Commissioner erred insofar as
he appears to have underestimated the extent of the worker's
failure to attempt the apprehension of alleged poachers,
particularly in the light of the previous incidents mentioned in
both submissions. The Court therefore is of the opinion that the
Board's decision to impose a period of suspension is reasonable in
the circumstances and should stand.
The Court so decides.
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD8930 APPEAL DECISION NO. AD2289
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: NORTH WESTERN REGIONAL FISHERIES BOARD
and
IRISH TRANSPORT & GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Board against Rights Commissioner's
Recommendation ST413/88 concerning the suspension of a worker.
BACKGROUND:
2. The worker concerned (Officer A) has been employed as a
fishery officer by the Board since April, 1981. The duties,
conditions of employment etc for fishery officers are set out in a
staff scheme which was agreed with the unions and the Central
Fisheries Board as provided for by Section 32 of the Fisheries
Act, 1980. Officer K is employed almost exclusively on fishery
protection duties.
3. On the 8th August, 1988, Officer A received a letter from the
Board's Regional Manager advising him he was being suspended from
duty, without pay, for a period of seven days, commencing on
Monday, 15th August, due to his failure to carry out his duties in
accordance with instructions and with the job specifications for
fishery officers. Specifically he was charged with the following:
- failure to ascertain the identity of poachers on the Newport
river on the 29th June, 1988 and the tactics employed on that
occasion;
- failure to ascertain the identity of the person or persons who
had set a net on the Crumpaun river on the 22nd July, 1988 and
failure to report this incident to his supervisor and to record
it in his weekly diary sheet;
- failure to ascertain the identity of a man caught at the scene
of a set net and who admitted that he had been fishing
illegally, on the Owengarve river on the 27th July, 1988 and
failure to apprehend the person in question using the powers
conferred on the officer by Section 299(2)(b) of the Fisheries
(Consolidation) Act, 1959.
The Union, on behalf of the worker, referred the matter to a
Rights Commissioner for investigation and recommendation.
4. The Rights Commissioner, having investigated the dispute in
Ballina on the 26th September, 1988, issued the following
recommendation on the 4th October.
"I cannot understand why no charges were brought against
the second officer. It is no defence by the Board to
state that the claimant was the senior man. There is no
clause in the staff scheme which confers such a status or
responsibility. The claimant is adamant that he informed
his superior at all time of incidents. I must give him
the benefit of the doubt here. He was in charge of the
radio but the second man had not got one. The range for
outside help was also doubtful from the location they
were in.
I do not consider that the format suggested by the
manager for giving the claimant a verbal warning to be an
appropriate one in the circumstances. The claimant, or
any other inspector spoken to on the occasion, understood
they were receiving a formal verbal warning. If that
were the case I would suggest there will be a number of
appeals made shortly by their Union.
The claimant was however in breach of regulations when
having asked for the man's name and address he failed to
follow it up when refused this information. The man's
age is no defence to this failure to obey regulations.
As it is the claimant's first offence I recommend that he
receives a verbal warning which should be placed on his
record.
I further recommend that the Board's penalty be
substituted by the above penalty as suspension without
pay for a first offence above is too severe in my view."
This recommendation was not acceptable to the Board which appealed
it to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. A Court hearing was held in Galway on the
14th February, 1989 (earliest suitable date).
BOARD'S ARGUMENTS:
5.1 The Rights Commissioner appears to have failed completely to
grasp the salient facts of the incident on 27th July, 1988,
i.e. the one which resulted in the suspension. While both
officers were at fault in relation to the earlier incidents,
Officer B's conduct during the third incident was impeccable
and he made every possible effort to apprehend the poacher.
The Rights Commissioner appears to have ignored the fact that
Officers B and A were on opposite banks of the river and the
man who had been fishing illegally was on the same side as
Officer A and within a few yards of him. Officer B had
already observed the man handling the net and had twice asked
for his name. When Officer A failed to take any action the
man simply walked away from the scene, Officer B immediately
endeavoured to follow him and, when he eventually found a
point at which he could safely cross the river, he followed
in the direction taken by the man in an effort to track him
down. This contrasts sharply with Officer A's performance.
When Officer A arrived on the scene, the man was positioned
on the bank at the point where the net was set. He admitted
to Officer A that he had been fishing. Officer A twice asked
the man for his name and on both occasions the man refused to
give it. The law is very clear in regard to the powers of a
fishery officer in such circumstances. Section 299(2) of the
Fisheries (Consolidation) Act, 1959, states that, where a
person is found fishing illegally,
(a) any authorised person may require the offender to do
the following things:-
(i) desist from such offence, and,
(ii) tell his name and address:
(b) if the offender, after being so required, wilfully
continues such offence or refuses to tell his name and
address, the authorised person and any other persons
acting under his directions may apprehend the offender,
and,
(c) where the offender is apprehended under this section
the authorised person shall forthwith deliver him into
the custody of a member of the Garda Siochana to be
dealt with according to the law. Officer A made no
attempt whatever to use these powers. He did not
inform the man that he could be arrested nor did he
suggest to the man that he could be brought to a Garda
Station. Had he done so, there is every likelihood
that the man would have given his name and address
voluntarily and there would have been no need to bring
him to a Garda Station. Furthermore, Officer A allowed
the man to simply walk away from the scene and made no
effort to follow him to ascertain where he went, where
he may have lived or any other information which would
have facilitated his identification at a later date.
Also, he failed to accompany Officer B when he
eventually got across the river and proceeded to follow
the man.
5.2 Contrary to what is suggested in the Rights Commissioner's
Recommendation, the Board never stated that Officer A had
been disciplined because he was the "senior man". The fact
that he was an officer with several years experience,
compared with Officer B who was a temporary employee in his
first season with the Board and with very limited experience,
had been mentioned in regard to the earlier incidents but the
question of experience, seniority or otherwise did not arise
at all in regard to the incident on 27th July, 1988, which
resulted in Officer A's suspension.
5.3 The Rights Commissioner states "the claimant is adamant that
he informed his superior at all times of incidents". Again,
this is at variance with the facts. In the course of a
Union/Management meeting on 18th August, 1988, and again at
the Rights Commissioner's hearing on 26th September, 1988, it
was admitted by the Union side that Officer A had committed
"an error of judgement" in not reporting the incident of 22nd
July, 1988, to his Inspector. The question of giving him the
benefit of the doubt or otherwise should not, therefore, have
arisen in regard to this point.
5.4 The recommendation states "I do not consider the format
suggested by the Manager for giving the claimant a verbal
warning to be an appropriate one in the circumstances". The
Board cannot understand what is meant by this statement and
it can only assume that the Rights Commissioner was under the
impression that the warning was delivered to all officers in
the course of a joint meeting. While the meeting held in
April was a joint one, involving all staff together, the
meetings held on 22nd July, 1988, were in private with each
officer being met individually. In the course of the meeting
with Officer A, he was informed very clearly that his
performance was unsatisfactory and, specifically, he was
warned in regard to his conduct on 29th June, 1988.
5.5 The Board regards the incident on the 27th July, 1988, as a
gross breach of conduct. In this regard, it draws attention
to the concerns which it had expressed regarding lack of
prosecutions in the area in question and to the instructions
given by the Regional Manager in regard to the need to
apprehend poachers.
5.6 Such incidents can have a very demoralising effect on other
staff, many of whom work very long hours, in adverse weather
conditions, in order to apprehend poachers. Frequently,
during the main salmon fishing season, Fishery Officers may
spend an entire night, regardless of weather conditions,
watching a set net in order to apprehend the offenders when
they come to lift the net in the morning. The working of
such flexible hours is a key element in the conditions of
employment of Fishery Officers (section 11.1 (a) of Staff
Scheme). In these circumstances, it is inconceivable to the
majority of Fishery Officers that where an opportunity to
apprehend a poacher presents itself as easily as it did on
the 27th July, such an opportunity should be let slip due to
reluctance on the part of a particular officer to take the
action which he is empowered to take and which his job
requires him to take. For this reason also, the Board
considers it essential that such gross neglect of duties is
dealt with in an appropriate manner.
5.7 The offence on the 27th July could not be regarded as a first
offence bearing in mind the previous incidents and the
warnings which had been given to the Officer in question.
Furthermore, the Board would contend that, even if this were
a first offence it was of such a serious nature that anything
less than a period of suspension could not be regarded as an
appropriate disciplinary measure. Also, the Board would
point out that the staff scheme provides for suspension
without pay as a disciplinary measure and states that
disciplinary procedure "will apply to all staff in respect of
breaches of discipline, e.g. misconduct, poor performance of
work and attendance record" and that "the seriousness of any
case will depend on the degree to which the act or omission
is at variance with the conduct or the standards of behaviour
and work performance expected".
5.8 In applying disciplinary action in this case, the Board
followed the procedure laid down at section 9.9 of the staff
scheme. Furthermore, in order to alleviate the financial
burden arising from the suspension, only half of his wages
have so far been stopped in respect of the week in question.
The Board is agreeable to recover the remaining 50% of wages
for the week in question by deduction from wages over an
appropriate period of time.
5.9 The Board submits that a verbal warning is totally
inappropriate in the circumstances and that the imposition of
seven days suspension without pay is a reasonable penalty for
a very serious breach of conduct which could prove very
damaging to the Board, undermine public confidence in Board
staff and weaken the resolve of other officers to carry out
their duties effectively and diligently.
UNION'S ARGUMENTS:
6.1 The letter of the 8th August, 1988, makes three specific
allegations against the worker. The first allegation
concerns an incident on the 29th June. On that night, at
approximately midnight, Officer A and Officer B discovered a
net across the river at a place called Doherty's Pool.
Officer A attempted to make contact on his hand radio with
his superior in order to get some back up but was unable to
do so. Officer B then suggested that he would go in the van.
He left at approximately 12.30 a.m. and returned at 2.30 a.m.
with another officer from a private fishery. In the
meantime, at about 1.45 a.m., two men had arrived at the
river. Officer A confronted them and in the ensuing struggle
Officer A managed to retrieve the net. The men got away but
the Union argues that there was nothing more he could have
done in the circumstances, given that he was up against
superior numbers and given the list of serious assaults on
fishery officers over the past few years.
6.2 The second complaint relates to an incident on the 27th July.
On that night both Officer A and Officer B were on patrol and
spotted a net across the Crumpaun river. They concealed
their van and waited in hiding. Some time later Officer B
claimed that he knew who had set the net and that they would
not be back to lift it until several hours later. As he was
not feeling well, he suggested they should go and return
later. They left the scene but when they returned the net
was gone. Officer A accepts that while he should perhaps not
have left the area, he did so acting on the advice of the
other officer and on the basis that this man did not feel
well. It would not have been advisable, from any point of
view, for him to remain on his own.
6.3 In the third incident referred to, the same two officers were
watching the Owengarve river. Officer B saw a net across the
river and on seeing a man walk up the river bank, he called
out to Officer A who approached the man and asked him what he
was doing. The man jocosely said that he was fishing and
when asked his name refused to give it. According to Officer
A the man had walked up to the river bank some fifty yards
past the net and was coming down again when he was accosted.
The place where the net was anchored was at the river's edge
about six feet down a sheer bank and judging the man's age,
Officer A decided that it was unlikely that the man was
associated with the net. Thus he felt there were no grounds
for arresting him or going any further with the matter when
the man refused to give his name.
6.4 In all of the above incidents, no disciplinary action was
taken against Officer B. The Union is not suggesting that
there should have been but it does question how the Board can
be so discriminatory. All these incidents were reported to
the supervisor who, in relation to the third incident, agrees
that there was no basis for proceeding any further against
the man concerned.
6.5 The terms of the staff scheme, as they relate to the
disciplinary procedure, were not followed insofar as there
was no verbal warning at any stage. Neither was there any
written final warning. The discussion which took place on a
general level could not be construed as a final warning and
was not written as is required. Furthermore, up to the 8th
August, 1988, no disciplinary action had ever been taken
against the worker.
DECISION:
7. Having regard to the submissions made by the parties, the
Court is satisfied that the Rights Commissioner erred insofar as
he appears to have underestimated the extent of the worker's
failure to attempt the apprehension of alleged poachers,
particularly in the light of the previous incidents mentioned in
both submissions. The Court therefore is of the opinion that the
Board's decision to impose a period of suspension is reasonable in
the circumstances and should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
9th March, 1989 ----------------
DH/PG Deputy Chairman