FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1); INDUSTRIAL RELATIONS ACT; 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr. Somers |
1. 1. Alleged denial of representation at disciplinary hearing 2. Alleged failure to follow agreed disciplinary procedures
BACKGROUND:
2. The dispute concerns the worker's wish to be represented at a disciplinary hearing by a member of the ILDA branch of the Union. In January, 2001, he referred the following issues to the Court:
1. That my employer is wrong to have denied me "representation" at a disciplinary hearing today , 9th January, 2001.
2. That my employer has not carried out the above hearing in line with Iarnrod Eireann's agreed "Grievance & Disciplinary Policies & Procedures".
The worker was issued with 2 warnings on the 6th and 13th of December, 2000, respectively. At the hearing on the 9th of January, the Company was represented by the Operating Manager in the worker's Dublin district. The worker was represented by the ILDA member who is a locomotive driver based in Athlone. There was conflicting evidence at the Labour Court hearing as to what happened. The Union claims that at the hearing the Company would not allow the ILDA member to speak on behalf of/represent the worker. The Company's view is that the ILDA member was released from duty to represent the worker as a "fellow employee". Instead, it claims , he tried to represent the worker as a shop steward of a union not recognised for negotiation purposes on behalf of train drivers. The Company only recognises SIPTU and NBRU for such purposes. The Operating Manager claims that as the ILDA member kept interrupting the hearing he had no choice but to abandon it.
The worker referred his case to the Labour Court on the 9th of January, 2001, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 24th of August ,2001.
UNION'S ARGUMENTS:
3. 1. The ILDA member did not interrupt the hearing to represent himself as the Company claims. Under the Company's agreed procedures, an employee is entitled to be represented at a disciplinary hearing by a fellow employee or a trade union representative. The ILDA member qualifies as a representative in this case, and custom and practise dictates that he was entitled to speak on behalf of the worker.
2. At the beginning of the hearing, the ILDA member was told by the Operating Manager that he was not allowed to speak at the hearing. When the ILDA member protested, he was shouted down by the Operating Manager who stated that the matter was "none of his business".
3. When the Operating Manager put the charges to the worker verbally, the worker stated that he could not respond to any charges until the ILDA member was allowed to represent him. As a result, the worker was served with 2 "B" forms - one for a severe warning and one for a final warning. He was not afforded fair procedure and natural justice.
COMPANY'S ARGUMENTS:
4. 1. The ILDA member was allowed to attend the hearing in his role as a fellow employee to represent the worker, as provided for in the agreed procedures. The Operating Manager outlined the procedures for the hearing. Before the hearing commenced properly, however, the ILDA member made several attempts to make statements and to represent himself as the worker's trade union representative. The ILDA is not recognised as a union for negotiation purposes for train drivers.
2. The Labour Court has previously investigated similar breakdowns in procedure, and has found the Company to have been reasonable in not accepting representation on the basis sought.
RECOMMENDATION:
It would appear from the evidence given to the Court that here may have been some confusion in relation to both parties' position at the original hearing.
The Company position was that the employee would have been allowed have his colleague represent him at the hearing as a colleague, but not if he was there as a trade union representative. The Company claimed that he had sought to have himself accredited as such.
The claimant insists that his colleague was prepared to represent him as a colleague, but was not given the opportunity to do so by management.
Taking into account all of the issues involved, the Court recommends that the hearing be re-convened and that the employee's colleague be allowed represent him during the hearing, clearly in his capacity as a colleague.
Signed on behalf of the Labour Court
Finbarr Flood
13th September, 2001______________________
CONChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.