FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR5673/01/TB.
BACKGROUND:
2. The worker is a locomotive driver employed in Athlone. In January, 2001, he was involved in a rail incident at a gate crossing in Kiltoom, Co. Roscommon. The worker maintains that he drove in accordance with all rules and regulations on the evening concerned.
On the 2nd of April, 2001, the worker was asked to attend a drivers' refresher course, something drivers are required to do every 2 years. The worker questioned this by letter on the same day stating that he had attended a course in September, 2000. On the 3rd of April, the worker received a notice of summary suspension from his acting district manager (ADM). The reasons given were (1) refusing to attend the refresher course and (2) refusing to meet the ADM for a meeting on the morning of the 3rd of April. The worker was to be suspended on basic pay (39 hours equivalent). The Union points out that the driver was at all times on a 44 hour contract and that as a result he suffered financial loss of €1,591. ( The worker remained on suspension until the 5th of September, 2001.) On the 5th of April, the worker wrote to the ADM stating that he was willing to attend the refresher course, that he had not refused to attend a meeting with the ADM and had, in fact, met the ADM in the presence of a witness on the 3rd of April.
The worker appealed his case to a Rights Commissioner. A hearing, which the Company did not attend, took place on the 17th of October, 2001. The Rights Commissioner's recommendation was as follows:-
"In the presence of any counter argument I agree with the worker and recommend he should be paid the £1,253 (€1,591) as claimed."
(The worker was named in the above recommendation).
The Company appealed the recommendation to the Labour Court on the 26th of November, 2001, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th of April, 2002, in Athlone.
COMPANY'S ARGUMENTS:
4. 1. The worker was required to attend the refresher course because of the incident in Athlone in January, 2001, but refused to do so. He also refused to attend a meeting with his ADM.
2. The worker was suspended on basic pay i.e. a 39 - hour contract, which is in accordance with the Company's agreed disciplinary procedures.
UNION'S ARGUMENTS:
3. 1. Statutory Instrument (S.I.) 146/2000 states that " An employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline. The worker's contract was for 44 hours per week, not the 39 hours he was paid for the 22 weeks' suspension. As a result, he lost €1,591.
2. When the Company finally determined a penalty against the worker it was a "warning". There was no financial penalty.
3. The worker made known to the Company within 3 days of his suspension that he was willing to attend a refresher course.
4. The worker received his summary suspension from his ADM at the meeting which he was accused of refusing to attend.
DECISION:
In the present case, the Court does not consider it appropriate to offer any view on what constitutes basic pay, for the purposes of the disciplinary procedure, of those contracted to work in excess of 39 hours per week. This is, however, a matter which should be clarified between the parties to the current Company/Unions agreements. In that regard, the Court notes that the current practice of the Company is to use the rate applicable to those on 39 hours contracts as constituting basic pay in all cases.
In considering the facts of this case, the Court cannot accept that the Company acted reasonably in keeping the worker on summary suspension for the whole of the relevant period. It seems to the Court that it should have been clear to the Company, within one week of the imposition of the suspension, that the worker was prepared to attend the proposed course.
In the Court's view, the reduction in pay suffered by the worker in respect of the period of suspension, excluding the first week, should now be refunded.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
29th April, 2002______________________
CON/MBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.