FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 43(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : IARNROD EIREANN/IRISH RAIL - AND - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Investigation into code of practice & disciplinary procedures.
BACKGROUND:
2. On the 10th of May, 2001, the National Implementation Body (NIB) issued a statement in connection with the then current strike in Irish Rail. In the statement, the NIB requested the Labour Court to investigate the issues in accordance with Section 43 of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 8th of June, 2001. The issue before the Court was as follows:-
The procedures for dealing with individual disciplinary matters in Irish Rail.
The statement went on to say:
The investigation would be for the purpose of recommending on the fairness, or otherwise of the procedures employed in Irish Rail in respect of the disciplinary cases in dispute, with reference to the Code of Practice on Grievance and Disciplinary Procedures (the Code of Practice).
The Company believes that the matters referred must be considered in the broad context and activities of the parties involved; namely the inter union relations and union representation set within the context of the Irish Locomotive Drivers' Association (ILDA) grouping within the locomotive grade seeking to establish recognition as an autonomous bargaining group within Irish Rail. The Company also believes that in the most recent incidents of strike action (8th - 10th May, 2001) the Amalgamated Transport and General Workers Union (ATGWU) was, and is, being used as a vehicle to pursue the ILDA objective of recognition.
At the Court hearing, the Union cited 8 individual disciplinary cases and supplied full details of each case. It is the Union's belief that in each case the Company failed to afford the members access to the fair process, due procedure and natural justice required by the Code of Practice. The Union also claims that these employees were not treated with equity vis-a-vis their colleagues in other organisations recognised for collective bargaining procedures.
In all of the 8 cases, each individual asked to be represented by a named employee, either as a fellow employee or in his capacity as Branch Secretary, ILDA Branch, ATGWU. The Union cited page 5, section 4 of the Code of Practice.... "the right to representation by fellow employee or trade union representative." The Company's case is that "the ATGWU is not a recognised representative body or a recognised trade union for the purpose of representing Locomotive Drivers in Iarnr�d Eireann". The Company recognises SIPTU/NBRU for this purpose. Where representative credentials were insisted upon a named employee was present i.e. he was afforded release from duty on the basis that he could act as representative in the capacity of a fellow employee. Insistence that a named employee be accepted as a representative in the capacity of an ILDA/ATGWU official effectively made a hearing impossible. Offers to have the workers represented by either SIPTU or the NBRU were not taken.
The Company believes that the Court has 2 areas of focus under Section 43 of the Industrial Relations Act, 1990. The first is the interpretation of a Code of Practice issued by the Labour Relations Commission (LRC) under Section 42 of the Act. The second is that the Company also wishes the Court to consider the following Statutory Instruments (S.I.s) which were issued containing relevant Codes of Practice - SI 1/1992, SI 169/1993, SI 117.1996 and SI 146/2000 which "replaced and expanded" SI 117/1996. A joint Labour Court/LRC report in the summer 2000 rail disruptions noted that SI 146/2000 was described as a Code of Practice on Grievance and Disciplinary Procedures. It "was prepared and promulgated as part of the agreement between the Social Partners on the implementation of the Report on recognition of unions and the right to bargain".
A Labour Court hearing took place on the 8th of June, 2001.
UNION'S ARGUMENT'S
3. 1 Although the cases concerned relate to 8 individual workers there are common features to some or all of them. The code of practice for disciplinary procedures and the Company's procedures themselves allow for a clear choice to be made by the accused person relating to his representation. An accused employee may nominate a colleague of his choice or a trade union representative. This entitlement is being denied although the ATGWU is a signatory to the procedures applicable in the Company
2. In the majority of the cases involved, the Company was invited to avail of the industrial relations services available but refused to do so.
3. There appears to have been a centrally determined policy to deal with many of the cases in the same manner, judging from the identical letters containing identical phraseology sent to the workers.
4. The Labour Court/LRC report of the 18th of December, 2000, states;
"For their part, management should be careful to ensure that all employees, regardless of their union affiliation, are treated equally and that any imputation of selective treatment of any particular group is studiously avoided. This means ensuring that internal procedures are applied fairly and objectively to all employees and are seen to so operate."
It is clear that the principle advocated by the report has not been applied in these cases.
COMPANY'S ARGUMENTS:
4. 1. The NIB described the strike action taken from the 8th - 10th of May as "clearly in breach of all industrial relations procedures."
2. In regards to ILDA's claim of right of representation/recognition within the Company, the High Court found that ILDA could not "lawfully conduct negotiations..." on behalf of locomotive drivers. Subsequently, the Supreme Court upheld the High Court's ruling.
3. The cases concerned contained very serious matters, including incidences of negligence while on driving duty, intimidation, absence without leave, assault, and refusal to carry out work. In each instance, the essential elements contained in the Company's agreed disciplinary procedure were applied. They were in complete compliance with the Code of Practice.
4. In the cases concerned, opportunity for hearing and appeal were given. It was the insistence that certain unacceptable credentials be accepted that a number of hearings and appeals did not proceed. The workers concerned were given more than one opportunity to choose appropriate and acceptable representation but choose not to do so.
5. Management was very concerned at what it perceived to be a concerted effort by ILDA to gain recognition.
6. The Company indicated that it was not dealing specifically with the 8 individual cases submitted by ATGWU.
OPINION:
To assist with the resolution of a dispute in Irish Rail, the Labour Court has been requested by the National Implementation Body, which was set up by the Programme for Prosperity and Fairness to investigate, using Section 43 of the Industrial Relations Act, 1990, the procedures for dealing with individual disciplinary matters in the Company.
The Court has been asked to investigate on the fairness, or otherwise, of the procedures employed in the Company in respect of the disciplinary cases in dispute, with reference to the Code of Practice on Grievance and Disciplinary Procedures. S.I. No 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures prepared under Section 42 of the Industrial Relations Act, 1990 replaced the 1996 Code of Practice on Grievance and Disciplinary Procedures (S.I. No: 117 of 1996).
The Company has a grievance and disputes procedure. It is set out in a document entitled “Grievance, Disciplinary Policies and Procedures” dated 7th March, 1994. This procedure was agreed between the Company and its recognised trade unions, of which ATGWU was a member. The Court is satisfied that this procedure conforms generally to the provisions of the Code of Practice.
On detailed examination of the Company’s disciplinary procedures, the Court is satisfied that the procedures afford protection to the individual in the event of disciplinary action being taken against him/her and affords individual rights of representation.
The Code of Practice “provides guidance on best practice in the areas to which it relates. It does not create legally enforceable rights and responsibilities. It should properly be regarded as an industrial relations rather than a legal instrument. It is not intended as a substitute for individual company disciplinary and grievances procedures. Rather, it is intended to set the minimum standards to which such procedures should conform. This is made clear at Part 3 of the Code which provides that the procedure should operate in accordance with locally agreed arrangements” as was pointed out in the Labour Court and Labour Relations Commission December, 2000, report.
The Court is satisfied that the procedures adopted by the Company and agreed with the trade unions are not in breach of S.I. No 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures.
Individual Right to Representation
In its submission to the Court, ATGWU (ILDA) stated that “ in order to ensure that each individual is treated fairly on individual matters of discipline, the disciplinary procedures afford employees choice of representation by any colleague or a trade union representative at all stages of the process”.
The code, when dealing with the issue of representation, states that an employee representative includes a “colleague of the individual’s choice and a registered trade union but not any other person or body unconnected with the enterprise”.
A named employee has represented employees outside his district in disciplinary cases on several occasions, as have other colleagues outside their own district. However, when this named employee requested to be represented as an ILDA representative, this was denied. The Court is of the view that this is not unreasonable given the background to this case. The Court is also of the view that to afford the right to this named employee to represent employees as a fellow colleague in all cases where drivers have joined ILDA would be tantamount to bestowing on him the same rights as a full time trade union official. This is clearly not a viable proposition as this named employee is employed on a full time basis as a train driver.
Appeal Tribunal
The disciplinary procedures provide for an Appeal Hearing either by way of a hearing before a Higher Manager, or before an Appeals Tribunal. Both of these situations are outlined in the “Grievance, Disciplinary Policies and Procedures” and are generally well known. The agreed policy is that the Tribunal consists of an agreed Chairperson, a Company nominee and a Trade Union nominee. The nominated Trade Union persons are from SIPTU and NBRU. As the Appeal Tribunal is not a “tribunal” in the true sense of the word but is more akin to a hearing before an independent chairperson, with a Company spokesperson representing one side and a Trade Union nominee representing the other, the Company refused access to it to the individuals involved in this claim as they were no longer members of SIPTU or NBRU.
The Court has considered whether this infringes their right to natural justice as laid down in the Code of Practice. The Court notes that the Company did not offer the services of the Appeals Tribunal to the individuals, despite the SIPTU/NBRU nominees, but rather indicated that this appeal procedure was not open to them, therefore, they could avail of the appeal to the Higher Manager option instead.
The failure to allow such access to the Appeals Tribunal is, in the Court’s view, a flaw in the system and does not comply with the required fairness and equity principles. However, access to the alternative was allowed. This provided for an appeal to proceed before a higher manager. It is clear that this route was not intended as the route for those situations where the disciplinary action invoked involves reprimand/severe reprimand/warning/severe warning and disciplinary action of a similar nature or where the employee is a temporary/casual employee or on probation, and not for situations where the more severe action has taken place i.e. withdrawal of proficiency certificate(s), loss of pay increment, suspension, demotion, transfer, final warning, dismissal or action of a similar nature.
Therefore, the Court is of the view that the Company should afford each individual employee access to the Appeal Tribunal in the manner it is presently structured and operates.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th July, 2001______________________
CON/CCDeputy Chairman
NOTE
Enquiries concerning this Opinion should be addressed to Ciaran O'Neill, Court Secretary.