FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners Recommendation IR20484/04/GF
BACKGROUND:
2. The dispute before the Court concerns an appeal by the Union, on behalf of its member who is an employee of the Central Bank and Financial Services Authority of Ireland, of a Rights Commissioners Recommendation regarding disciplinary sanctions imposed by the Bank following an investigation process. The employee is alleged to have solicited money from two employees as a fee for securing permanent jobs with the Bank. The disciplinary action taken by the Bank resulted in the demotion of the employee’s position with a consequent adjustment in the terms and conditions of his employment. A final written warning was placed on his personal file.
- The Union claims that the manner in which the Bank handled the situation is completely contrary to the procedural agreement agreed between the Irish Printing Federation and the Dublin Printing Group of Unions containing the agreed Disciplinary Procedure. The Bank contends that the investigation process was exhaustive and given the serious nature of the findings of the investigating team, the disciplinary sanctions applied to the employee following a comprehensive appeals process by the Bank were not excessive.
The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 14th December 2004, as follows:
“I have considered this case carefully and I must conclude the procedures adopted by the Bank were fair and in my opinion natural justice prevailed. I do not think in the circumstances which prevailed that the sanctions were too excessive. Therefore, I find in the Banks favour.”
The worker was named in the Rights Commissioner’s Recommendation.
On the 23rd December,2004, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th August, 2005.
3. 1.The senior officials who conducted the investigation would have been fully aware of the likelihood of a disciplinary hearing and consequently the need to preserve all relevant documentation for such a hearing, even if it were no longer relevant to their investigation. The fact that they did not do so, together with the unavailability of this vital material, was not given sufficient weight by the Bank in arriving at their decision.
2. The Rights Commissioner stated, “I must conclude the procedures adopted by the Bank were fair”. The Union argues that this conclusion is not open to the Rights Commissioner and that as a result his finding is flawed. It is not for the Bank to adopt procedures other than those already agreed.
3. The Union is requesting that the Court take due note of all the inconsistencies and procedural flaws that occurred in this case and to overturn the original verdict and penalty
BANK'S ARGUMENTS:
4. 1 The Bank has an obligation to investigate every allegation of misconduct on the part of any employee of the organisation, particularly when the allegation is of a monetary nature.
2. A comprehensive and thorough investigation was carried out. The employee engaged fully with the process, the subsequent disciplinary hearings and the appeal hearing. Careful consideration was given to all material submitted by the employee during the course of the investigation.
3. The Bank is satisfied that the disciplinary sanctions applied to the employee were not disproportionate given the serious nature of the report and findings of the investigating team. The Bank is requesting the Court to uphold the Rights Commissioners position.
DECISION:
The investigation initiated by the Bank into the complaints against the claimant was of such a nature as to require the observance of fair procedures at every stage of the process. It is accepted that in the course of the investigation neither the claimant or his representative was afforded an opportunity to question witnesses giving evidence against the claimant. In the circumstances of this case the Court considers that this omission amounted to a breach of the Code of Practice on Grievance and Disciplinary Procedures (S.I 146 of 2000), which the Court must take into account. Accordingly, the investigation was tainted by procedural unfairness and that the decision arrived at by the investigating body cannot stand.
In view of the seriousness of the matter, the Court believes that the fairest way to proceed is to establish a new enquiry into the allegations that the claimant solicited or accepted money in the manner alleged. However, having regard to the background against which this matter came before the Court, an external person or persons should be appointed to conduct the investigation.
It is the Court's view that the parties should agree on an external person or persons to be appointed for this purpose. In the absence of agreement the Court will make a nomination. The costs of the external investigator(s) should be met by the Bank.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
12th August, 2005______________________
JO'CChairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.