Labour Court Database __________________________________________________________________________________ File Number: CD91182 Case Number: LCR13277 Section / Act: S20(1) Parties: IRISH RAIL - and - ELECTRICAL TRADE UNION |
Claim by the Union that the Company's disciplinary procedures were not fairly applied to a worker.
Recommendation:
5. The Grievance and Disciplinary Procedures in Iarnr�d Eireann
agreed and accepted by the parties have served the Company and the
workers well since their implementation, and provided the
procedures are implemented fairly the Court considers there should
be no interference with the decisions as a result of the use of
the procedures unless such decisions are plainly unreasonable.
The Court in addressing those rare discipline cases referred to it
have invariably upheld the integrity of the Agreement.
The Grievance and Disciplinary Procedures are a set of rules
agreed by the parties with a view to giving the worker a right to
fair procedures. They are a guarantee that having regard to all
the circumstances of the case the procedure available to the
worker and adopted in dealing with it will be fair.
In this case it is the view of the Court that the procedure
adopted was not fair in that the manager, having become the
principle complainant in the issue, in operating the procedure
took to himself the role of judge.
Accordingly the Court concurs with the view expressed by the Union
that the procedure adopted was flawed and denied the worker
natural justice. In arriving at the above conclusion the Court
took account of the Company submissions that the case should
proceed to appeal stage where any alleged prejudice suffered by
the worker at the hearing before the manager could be corrected
through the comprehensive nature of the appeal procedures.
The Court however was of the view that given the procedures
entitled the worker to the right of a fair hearing and the right
of appeal it would be unacceptable to expect the worker concerned
to accept less.
In view of the above the court considers the penalty imposed
should be withdrawn.
The Court however does not concur with the request of the Union
that the charges be withdrawn. The Court takes the view that in
respect of the charges of indiscipline there is a case to be
answered and the issues should be dealt with in accordance with
the Disciplinary Procedures through such arrangements as will
ensure that the worker is provided with a fair hearing.
The Court so recommends.
Division: MrMcGrath Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD91182 RECOMMENDATION NO. LCR13277
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IRISH RAIL
AND
ELECTRICAL TRADE UNION
SUBJECT:
1. Claim by the Union that the Company's disciplinary procedures
were not fairly applied to a worker.
BACKGROUND:
2. The Company operates an agreed internal grievance and
disciplinary procedure for shop workers (details supplied to the
Court). The worker concerned is employed as an electrician at the
Company's Inchicore Works. On 20th August, 1990 an incident
occurred involving the worker and a manager. The manager claims
that the worker was rude and offensive to him when questioned
about his duties. The manager subsequently summoned the worker to
his office on a number of occasions but the worker refused to
attend. On 12th September, 1990 the worker's pay was suspended
for refusing to attend the manager's office. Following
representations on behalf of the worker the suspension of pay was
lifted and an investigation of the complaint against the worker
was held on 17th September, 1990. On 9th October the manager
issued formal charges in writing to the worker. The worker was
charged with being rude/disrespectful to the manager and with
failing to attend the manager's office as instructed. The parties
arranged for a formal hearing of the charges on 31st October,
1990. The manager concerned officiated at the hearing. The Union
attended the hearing but refused to discuss the charges as it
claimed that the hearing was flawed. The Union claims that in
this instance it is contrary to natural justice that the aggrieved
party should be a judge in their own case. The matter should be
dealt with by a third party. The manager considered the matter
further and issued his findings in January, 1991. A penalty was
imposed of 2 weeks suspension from duty without pay in each case
to commence on the 4th February, 1991 and to run concurrently.
The Union appealed against this decision and an appeal hearing was
arranged for 11th March, 1991. At the appeal hearing the Union
claimed that the initial hearing had been flawed and requested a
joint referral of the dispute to the Labour Court. The Company
declined this request. The Union then referred the dispute to the
Labour Court under Section 20(1) of the Industrial Relations Act,
1969 and agreed to be bound by the recommendation of the Court. A
Labour Court hearing took place on 19th April, 1991.
UNION'S ARGUMENTS:
3. 1. The Union is not objecting to the use of the agreed
internal procedures in respect of disciplinary matters.
However such disciplinary procedures must be used fairly. In
this case the complainant, who had a personal grievance,
initiated the charges and acted as a judge in his own case.
This demonstrates a flaw in the disciplinary procedures which
is contrary to the fundamental principle of natural justice.
The worker therefore had no chance of a fair hearing.
2. The formal hearing of the charges against the worker was
flawed. The manager concerned should not have acted as
deciding officer in a matter which directly affected himself.
In such cases the Company should appoint a member of
management who is not personally and subjectively involved in
the complaint to officiate at the disciplinary hearing.
3. When the manager investigated the complaints on 17th
September, 1990 he clearly rejected the Union's arguments and
decided to issue charges against the worker. The manager
therefore could not be expected to be impartial at the formal
hearing. By officiating at the hearing he placed the Union
at a disadvantage in defending the worker. The Union is also
at a disadvantage at the appeal stage of the disciplinary
procedures as a much stronger case has to be made to secure a
reversal of the manager's decision.
4. As the formal hearing of the charges was flawed and
contrary to natural justice the suspension imposed should be
quashed. The charges should be withdrawn and the matter
declared closed.
COMPANY'S ARGUMENTS:
4. 1. From the beginning the Company acted with restraint and
made every effort to have the matter processed through the
agreed disciplinary procedures. The matter was dealt with
properly and correctly in a cool and compassionate way by the
manager concerned.
2. Management must be able to initiate disciplinary matters
which come to their attention. To ignore irregularities
would be to condone them. The practice of managers
initiating disciplinary procedures where they are the key
witness is commonplace in commerce and industry.
3. In this particular case the manager who initiated the
charges also officiated at the formal hearing. There is
nothing amiss in the same person initiating and hearing the
charges provided he/she acts impartially. The manager
concerned made every effort to get the worker's version of
events and allowed for a cooling off period.
4. The Company is very concerned that agreed disciplinary
procedures should not be impaired or frustrated. The proper
course is to have the matter dealt with by way of normal
appeal hearing. Leaving aside the charges of being abusive
to the manager, there are charges in relation to failing to
obey management's instructions which must be dealt with in
accordance with the disciplinary procedures.
RECOMMENDATION:
5. The Grievance and Disciplinary Procedures in Iarnr�d Eireann
agreed and accepted by the parties have served the Company and the
workers well since their implementation, and provided the
procedures are implemented fairly the Court considers there should
be no interference with the decisions as a result of the use of
the procedures unless such decisions are plainly unreasonable.
The Court in addressing those rare discipline cases referred to it
have invariably upheld the integrity of the Agreement.
The Grievance and Disciplinary Procedures are a set of rules
agreed by the parties with a view to giving the worker a right to
fair procedures. They are a guarantee that having regard to all
the circumstances of the case the procedure available to the
worker and adopted in dealing with it will be fair.
In this case it is the view of the Court that the procedure
adopted was not fair in that the manager, having become the
principle complainant in the issue, in operating the procedure
took to himself the role of judge.
Accordingly the Court concurs with the view expressed by the Union
that the procedure adopted was flawed and denied the worker
natural justice. In arriving at the above conclusion the Court
took account of the Company submissions that the case should
proceed to appeal stage where any alleged prejudice suffered by
the worker at the hearing before the manager could be corrected
through the comprehensive nature of the appeal procedures.
The Court however was of the view that given the procedures
entitled the worker to the right of a fair hearing and the right
of appeal it would be unacceptable to expect the worker concerned
to accept less.
In view of the above the court considers the penalty imposed
should be withdrawn.
The Court however does not concur with the request of the Union
that the charges be withdrawn. The Court takes the view that in
respect of the charges of indiscipline there is a case to be
answered and the issues should be dealt with in accordance with
the Disciplinary Procedures through such arrangements as will
ensure that the worker is provided with a fair hearing.
The Court so recommends.
~
Signed on behalf of the Labour Court
23rd May, 1991 Tom McGrath
A.S. / M.O'C. _______________
Deputy Chairman