FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IRISH SOCIETY FOR AUTISM (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR6229/01/JH
BACKGROUND:
2. The worker was employed by the Irish Society for Autism (I.S.A.) at their centre in Galway as a co-worker from 2nd October 2000. He was dismissed by the I.S.A. effective from the 2nd June 2001 by reason of 'Gross Misconduct'.
The issue was referred to a Rights Commissioner for investigation and recommendation. On the 24th of September 2002 the Rights Commissioner issued her Recommendation as follows:-
"Based on the submissions and for the reasons set out in the foregoing conclusion I find that the procedures in process as used by the Society in dealing with the worker as an employee were unfair and that due process was not followed. Notwithstanding the worker's behaviour and his contribution to the decision of the Society the balance in this situation is against the employer and I recommend that the worker receive a termination payment of €3,000 compensation in settlement of his claim for unfair dismissal".
(The worker was named in the Rights Commissioner's Recommendation)
The Society appealed the recommendation to the Labour Court on the 8th October, 2002 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 12th March 2003, the earliest date suitable to the parties.
SOCIETY'S ARGUMENTS:
- 3.1 The Society are appealing the Rights Commissioners findings and her opinion "The worker was conducting the appeal process while a former employee of the Society"and "this process was unfair to the worker because what he was in effect being asked to do was persuade his former employer to re-engage or re-employ him and the balance of the process had swung away from him at that stage and the possibility of his re-employment or re-engagement must be considered to have been extremely unlikely"
2.The Society's appeal process was conducted procedurally. The Society wanted the appeal concluded within five working days. The delay was due to a request by the worker's representative IMPACT to facilitate the worker. This was conceded by the Society and took place on the 27th July 2001.
3. The Rights Commissioner found that the Society had grounds for terminating the worker's employment and awarded the worker €3000 in compensation in settlement of his claim for unfair dismissal.
- UNION'S ARGUMENTS:
4.1. The worker or his representative IMPACT did not appeal the Rights Commissioners findings however they were of the view that the I.S.A. did not conduct a fair and full investigation. The worker was not afforded due process before, during or after the decision of the I.S.A. to dismiss him. The investigation was conducted in the space of 4 days commencing on the 29th May, 2001 to 2nd June, 2001. The worker was not afforded sufficient time to organise representation. He was not given appropriate time or information to be able to assess the possible consequences of the allegations made against him.
2. The penalty of dismissal was not proportionate to the alleged misconduct. The I.S.A's own procedures in relation to disciplinary matters state that "The I.S.A. wholeheartedly subscribes to the philosophy that discipline must be corrective rather that punitive. Accordingly we endeavour to impose progressively more stringent sanctions before terminating the employment of an individual".
3. The worker appealed the decision ofthe Operations Director on 21st June 2001. On the 27th July 2001 when the I.S.A. afforded the worker a hearing, the appeals committee consisted of the Executive Director who had already ruled on the earlier appeal and the Operations Director had who conducted the earlier investigation.
DECISION:
The Court has considered the submissions of both parties. The employer's grounds of appeal relate to the Rights Commissioner's conclusion that while the Society had grounds for terminating the worker's employment, the procedures, which included an appeal process, were flawed.
In particular the Society objected to the Rights Commissioner's conclusion that the worker "while given an opportunity to appeal the decision, was in effect a former employee from the date of the letter of the 31st May 2001". The Court notes that the Society's disciplinary procedures do not contain an appeal procedure, however, a decision was taken in this case to grant an appeal. The Court accepts the employer's objection and is satisfied that their procedures are generally in line with Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000.
However, having examined the circumstances of the dismissal the Court is satisfied that the procedures adopted in this case were flawed and accordingly upholds the Rights Commissioner's recommendation that €3000 compensation be paid in full and final settlement of this claim.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th March, 2003______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.