FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1); INDUSTRIAL RELATIONS ACT; 1969 PARTIES : IARNROD EIREANN - AND - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Application of disciplinary procedures.
BACKGROUND:
2. The case before the Court concerns the application of disciplinary procedures in relation to the representation of employees by colleagues in matters of grievance and discipline within the Company. The Union claims that the Company issued disciplinary procedures against one of its members which provided for a 3 day suspension without pay and a final warning. The worker sought to appeal this decision through the internal Appeals Tribunal provided for within the Company's "Grievance and Disciplinary Policies and Procedures."
Management stated that it informed the worker that he could not have access to the Appeals Tribunal as the Locomotive Drivers Association (ILDA) was not a recognised Trade Union or Representative Body. It did, however, indicate that the worker could appeal to a higher manager and that a colleague of his choice could accompany him to the hearing. The matter of representation has already been dealt with in LCR16904
and INTO13.
The worker did not accept that he had no entitlement to access "the Appeals Tribunal process."
The Union referred the dispute to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court's recommendation. The Court investigated the dispute on the 11th of January, 2002.
UNION'S ARGUMENTS:
3. 1. The disciplinary action proposed by the Company was reached outside agreed procedures and industrial relations norms.
- 2. The manner in which management has dealt with this complaint has brought the "Grievance & Disciplinary Policies & Procedures" agreed between the parties into disrepute.
COMPANY'S ARGUMENTS: 4. 1. The Company rejects the suggestion that it acted outside of procedures or industrial relations norms. The disciplinary process should be progressed to conclusion. 2. The Company has at all times been fair and reasonable in this case. The internal disciplinary procedure was properly and fairly applied.
- 3. The Company's interpretation of INTO13 was confirmed as being correct by the Court, i.e. that representation by NBRU or SIPTU as the recognised Trade Union, should be offered.
to proceed.
RECOMMENDATION:
The background to this case is a disciplinary hearing in which a member of the ATGWU union is involved. It became apparent from the Union's point of view, that this case, revolved around the right of an employee to chose "representation by any colleague or a trade union representative at all stages of the process."
The Union interprets this clause in the Company's "Grievance and Disciplinary Policies and Procedures" as meaning that any employee who is a member of this Union may request any other employee to represent him. This interpretation extends to a belief that in such instances where the disciplined employee is a member of this Union, that the requested colleague can be the Branch Secretary of the Union involved, a Union, which is not recognised for negotiating purposes by the Company. As the Branch Secretary is a full time employee, and not a full time official of the Union, the Company is of the view that it is unreasonable that it be asked in effect to allow one particular employee paid time off to act as a representative. Therefore, the Company has, apparently, brought in restrictions curtailing the range of employee who may represent another. The Company stated that this restriction has been Company policy on this issue since February, 2001. This restriction was not explained to the Labour Court at its consideration of its Opinion INT013 in June, 2001, nor in subsequent clarification correspondence.
The Court wishes to reiterate its position as set out in Opinion INT013 that it does not support any request for individual representation which if conceded would put an employee in a position analogous to a Union Official. Neither could it support a blanket ban on an employee being allowed to represent fellow workers as a colleague at disciplinary hearings. In its letters of clarification to the parties following Opinion INT013, the Court held that INT013 could not be interpreted as confining representation by a fellow colleague to a particular depot. The Court has consistently taken the view that the Company should allow reasonable time off in such circumstances i.e. the restriction on the amount of such paid time off must be related to the operational needs of the Company and to the ability of any individual member to fulfil his contract of employment.
However, it would appear that the discretions intended by the Court and explained in its letters of clarification have been interpreted in an unreasonable manner. Therefore, in order to finally address this situation, the Court is of the view that a policy on individual rights of representation should be discussed with those Unions who have negotiating rights for the purposes of the Grievance and Disciplinary Policies and Procedures. This process should be completed by the 5th of April, 2002. This agreed policy must be clearly explained throughout the Company to ensure that future claimants may be aware who could represent them.
In this particular case, as the claimant has made it clear that he wishes to have the assistance of a named employee as a work colleague to represent him at an appeal with a Higher Manager, then the Court recommends that the Company should accede to his request.
Finally, this Court strongly deprecates the attitude of the Company in withholding information from the Court when it was considering Opinion INT013.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th February, 2002______________________
LW/BR
Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.