FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CONNEX TRANSPORT IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-031865-IR-05/TB
BACKGROUND:
2. The Company, Connex Ltd, operates the LUAS system in Dublin city and during the setting up of the LUAS operation regular discussions were held between the Company and the Rail Procurement Agency, it's Client, to ensure the efficient start-up of the operation. The dispute before the Court concerns an appeal of a Rights Commissioner's Recommendation by both the Union on behalf of its member, the Claimant, and the Company.
- The Claimant was employed as a Traffic Supervisor with the Company from January, 2004, until his dismissal in December, 2004. In October, 2004, the Claimant forwarded, by e-mail, information to the Rail Procurement Agency (RPA) without the knowledge of the Company, which the Company contends was designed to discredit it by informing and focusing on issues surrounding the effective operation of the LUAS. The Company contends that the information was forwarded to the Agency without the knowledge or consent of Management and was an obvious attempt to undermine the Company’s standing with the Agency. His actions were considered to be gross misconduct and he was suspended in November, 2004. Following investigation and a full disciplinary process the Claimant was dismissed from employment in December, 2004 for alleged breach of trust amounting to gross misconduct.
The Union contends that the environment in which the Claimant was employed was one of open and encouraged discourse between Company staff and employees of the RPA. The charge of 'breach of trust' is wrong-headed and perverse.
The matter was referred to a Rights Commissioner for investigation and Recommendation. His findings and Recommendation issued on the 3rd June, 2005, as follows:
“Based on the evidence at the hearing the one clear point that emerges is that there were not rival organizations in competition with each other but rather were two organizations who were trying to achieve the same common end i.e. the efficient operation of the Luas.
In these circumstances I believe it was not unreasonable for the claimant to pass information to the RPA which he considered was helpful to achieving a common purpose.
What he did may have been indiscreet but I did not detect that there was any malicious intent on his part to damage the Respondent Company, which appears to be the Company’s interpretation of events. I have concluded that dismissal was an excessively harsh penalty in the circumstances. It was acknowledged at the hearing that relationships between the claimant and the Respondent were now so strained that re-instatement was not an option.
I recommend that the Claimant be paid €7,500 in compensation. ”
On the 13th June, 2005, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Union contends that its case was vindicated by the Rights Commissioner’s conclusion that the dismissal of the Claimant was an excessively harsh penalty in the circumstances and by his decision to recommend compensation. The Union, however, is not satisfied that the compensation recommended fairly reflects the extent of loss suffered by the Claimant.
On the 14th July, 2005, the Company appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. It is the Company's contention that the Rights Commissioner erred in fact in this matter.
A Labour Court hearing took place on the 7th December, 2005.
UNION'S ARGUMENTS:
3. 1. The information sent to the RPA was not intended to damage the Company's reputation.The information was sent, on receipt of a request from the RPA, in an attempt to explain why there were considerable difficulties in the system. Never at any time did the Claimant consider that he was breaching trust or confidence in doing what he did. The Company has made much of the phrase 'on the quiet' used in the e-mail from the Claimant to the recipient in the RPA and has ignored the Claimant's explanation that the phrase was intended only to connote the Claimant's concern that another RPA employee, junior to the recipient, was the usual recipient of the report.
2. Had the Claimant been treated reasonably by the Company he would still be employed as a Traffic Controller and would be on the 3rd point of the salary scale. Instead the Claimant has been forced to settle for temporary employment. He suffered dismissal on the cusp of Christmas 2004 which caused great distress to his family. The excessively harsh penalty imposed on the Claimant continues to inflict distress on his family.
3. A man should not lose his livelihood based on the eccentric musings of his employer on the "motive" for communicating widely available, indeed widespread, information to the body charged with obtaining that information in the first instance.
COMPANY'S ARGUMENTS:
4. 1. In November, 2004, the Company became aware that information had been sent to the RPA without the knowledge or consent of Management. Examination of this e-mail correspondence clearly shows that the Claimant was engaged in sending information to a senior manager in the RPA, in a specific format designed to highlight difficulties with LUAS services, in quite obvious efforts to discredit the Company and undermine its standing with the RPA. In requesting the contact in the RPA to 'keep it quiet' his actions indicate deception. Further e-mails discovered during investigation show similar efforts to deceive the Company.
2. No other Company employee has engaged in such similar activities, which were clearly in breach of Management instruction and accepted practice. No attempts were made by the Claimant to discuss his concerns related to these alleged 'operational issues' with his Union representatives at any time, which would have been the normal methodology to seek resolution of concerns.
3. Following a full investigation and disciplinary hearing, carried out in accordance with principles of natural justice, the Claimant was dismissed from his position of Traffic Supervisor for a gross breach of trust.
DECISION:
Having considered the submissions of the parties to this appeal the Court is satisfied that the Claimant's dismissal was unfair for the reasons identified by the Rights Commissioner.
The Court is of the view that in the circumstances of this case the amount of compensation recommended by the Rights Commissioner is not adequate. It is the decision of the Court that the award be increased to one of €14,000. This aspect of the Recommendation of the Rights Commissioner is varied accordingly.
The Company's appeal is disallowed and the Union's appeal is allowed.
Signed on behalf of the Labour Court
Kevin Duffy
21st December 2005______________________
JO'CChairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.