FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN (ATHLONE) - AND - SIX NAMED WORKERS (REPRESENTED BY AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Rendering void of procedures.
BACKGROUND:
2. The dispute concerns six named workers who are employed as train drivers and are based at the Athlone Depot. The Union claims that the Company is currently misapplying individual disciplinary procedure in pursuance of a collective trade dispute in the case of the named workers. The Union claims that this misapplication of procedure is improper, outside procedure and in breach of legal and employment entitlements. The issue arises as a result of a letter dated 17th February, 2003 issued to the recognised trade unions and copied to the claimants. The Union claims that the amended procedure outlined in this letter was then invoked by the District Manager, Athlone, in respect of the six named workers from 14th January, 2004 with further disciplinary actions issued subsequently. Management rejected the Union's claim. On the 11th March 2004, the Union referred a complaint to the Labour Court under Section 20 (1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Court hearing was held in Mullingar on the 15th June, 2004. Subsequent to the hearing both parties submitted additional information which was considered by the Court.
UNION'S ARGUMENTS:
3. 1. The Company has tried to impose roster changes on the named workers which are not agreed with the recognised trade unions. The Company has imposed disciplinary procedures, not agreed with the recognised trade unions, on the named workers in an arbitrary fashion.
2. The disciplinary procedures have been initiated by Management without any process or without the recipients of the penalties imposed having had any opportunity to offer a defence (written or verbal) to any representation or appeal process.
3. The Company has proceeded in this case without affording the named workers the most basic employee rights.
4. The Union asks the Court to recommend that the processes which were begun by the Company on 14th January, 2004 predicated on Management's letter of 17th February, 2003 are improper, outside agreed procedures and cannot continue.
COMPANY'S ARGUMENTS:
4. 1. The application of the disciplinary procedures arose in the context of unofficial industrial action when the named workers advised of their intention to withdraw their services between the hours of 19.00 and 02.00 each Saturday evening with effect from 10th January, 2004.
2. The named workers engaged in unofficial action and disrupted the planned new timetable for the Galway-Athlone train each Saturday evening.
3. The Company initiated disciplinary procedures against those involved in respect of their individual participation.
4. The Company notice, issued generally to staff on the 17th February, 2003, warned that any individual leading or engaging in unofficial action would face specified consequences including the application of disciplinary procedures.
RECOMMENDATION:
This case concerns the application of disciplinary action against six named drivers for refusing to operate train transfers between Athlone and Galway on Saturday nights, and for placing pickets at Athlone Station.
The recognised and accepted disciplinary policies and procedures within Iarnrod Eireann are as set out in Appendix 2 of the booklet agreed between Iarnrod Eireann, the ICTU Group and the NBRU in March, 1994. Although the drivers involved in this case are members of a Trade Union not recognised for negotiating purposes by the Company, it is logical to assume that they also would be covered by the procedure of March, 1994, that being the only procedure in operation and agreed upon.
In a letter dated 17th February, 2003 and addressed to the ITCU Group of Unions and the NBRU, the Company referred to an unofficial work stoppage which had occurred the previous week and served notice of its intention to deal as follows with unofficial action:
"1. No payment will be made to any individual who participates in unofficial industrial action.
2. For each day or part day on which an individual participates in unofficial industrial action one day's suspension of duty, without pay, will apply.
3. Each individual participant in an unofficial industrial dispute will have their personal file endorsed and this endorsement will be taken into account should they be involved in a subsequent disciplinary procedure.
4. In the event that an individual receives two endorsements on their personal file, because of involvement in unofficial industrial action,the disciplinary procedure shall be applied.
5. Any individual or individuals believed to be involved in leading an unofficial work stoppage, or other unofficial industrial action will be subject to our agreed disciplinary procedure.
6. Any individual(s) group(s) or trade union(s) which leads, encourages or supports unofficial industrial action maybe cited in an action for damages in the High Court, in breach of the 1990 Industrial Relations Act, and under relevant statutes."
It is contended by the Union that the Company dealt with its members using the above procedure despite the fact that (a) the new procedure did not form part of the agreed Company / Union disciplinary procedure and (b) the new procedure had not been used to discipline members of other Trade Unions who had engaged in unofficial industrial action. The Union also submitted in further correspondence that the 6 named drivers disputed their involvement in unofficial action.
The Company argues that, although the drivers were served with notice of suspension and other sanctions, in line with the terms of its letter of the 17th February, 2003, these sanctions had not in fact yet been applied, nor had the sanctions on other staff, members of other Trade Unions, who had allegedly engaged also in unofficial industrial action.
The Court notes that the sanctions mentioned are available to the Company through application of the accepted disciplinary policy.
The Court also notes that both the Republic of Ireland Secretary and the Legal Director of the Trade Union are on record as affirming that the drivers' action was not sanctioned by the ATGWU. The action must, therefore, be deemed to be unofficial.
While the Company was within its rights to issue the letter of the 17th February, 2003, in order for this policy to become part of the Official Disputes Resolution Procedure, it should be negotiated and agreed with the Trade Unions concerned.
The Court therefore recommends that the alleged breaches of discipline by the 6 named drivers should be dealt with under the existing formal disciplinary policies and procedures, which, in the Court's view, contain both the necessary provisions and sanctions to deal with the matters.
The Court does not concur with the Union's view that refusal by any worker who is a member of another union to obey an instruction from management gives its members a reason to similarly fail to obey such an instruction.
The Court reiterates the view, as set out in the Joint Labour Court / Labour Relations Commission Report of 2000, that a process needs to be found wherebyallworkers in the Company are re-integrated into its collective bargaining process.
Signed on behalf of the Labour Court
Raymond McGee
13th August, 2004______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.