FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ROSCOMMON COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioners Recommendation IR19497/04/GF.
BACKGROUND:
2. The dispute before the Court relates to the suspension of the Claimant, employed in the Civic Amenity Area at a Landfill site in Roscommon, following an investigation, by the County Council, into irregularities in relation to it's operation. The Council's position is that, following the investigation, it was satisfied that the Claimant allowed a member of the public into the Landfill site without being weighed and he was subsequently suspended for a period of two weeks.
- The Union rejects the County Councils position on the basis that the Claimant's responsibilities were restricted to the Civic Amenity Area, which is at the front of the site and that he had no responsibility for the weigh-bridge or any activities which took place in the rest of the site. It further contends that the Claimant was not informed by the Council that he was under investigation.
- The matter was referred to a Rights Commissioner for investigation and Recommendation. His findings and Recommendation issued on the 1st March, 2005, as follows:
“Having listened to the evidence presented during the hearing and viewing the video provided by the manager at the appeal I feel the County Council was correct in its decision to suspend the claimant. However, I believe the suspension in this case was too severe and I am recommending that the period be reduced to one week and to restore his reckonable service for increment when it is due.”
On the 11th April, 2005, the Worker 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 6th June, 2006.
- The matter was referred to a Rights Commissioner for investigation and Recommendation. His findings and Recommendation issued on the 1st March, 2005, as follows:
UNION'S ARGUMENTS:
3. 1. It was not the Claimant's duty or function to prevent members of the public from accessing the Landfill site. The Claimant co-operated fully with the inquiry into alleged irregularities at the Landfill site. He was not guilty of anything so he hid nothing. The County Council is in breach of the Code of Practice on Disciplinary Procedures in that the allegations or complaints were not set out in writing, the source of the allegations or complaints were not given, nor was the Claimant allowed to confront or question witnesses. The Disciplinary Procedure did not comply with the general principles of natural justice.
2. The Court is requested to recommend that the two weeks suspension be removed from the Claimant's record and that he be returned to work in the Civic Amenity Area until such time as he applies for a transfer from there. The Claimant believes that he was wronged by his employer and feels that a return to work in the said area would clear his name in front of his peers and neighbours.
COUNCIL'S ARGUMENTS:
4. 1. The irregularities at the Landfill site were of such a magnitude and gravity that it was necessary to have it investigated by an executive team. Having studied both the oral evidence and video evidence, the investigation team was satisfied that the Claimant was guilty of misconduct in relation to the carrying out of his duties.
2. It would not be appropriate to reassign the Claimant to the Landfill site following the service of his suspension. The recommendation of the investigation team was upheld by the County Manager.
DECISION:
In this case the Union contends that the investigation by the Council into complaints of misconduct against the Claimant was flawed in that it did not conform with the requirements of natural justice.
On the evidence before it the Court is satisfied that the Claimant was aware that certain irregularities at the facility at which he worked were under investigation by the County Council and that he was under suspicion in that regard. He had been suspended on full pay and had been invited to an interview accompanied by his Trade Union Official. In these circumstances the Claimant must have known that the possibility of his involvement in the irregularities was being actively considered in the enquiry.
However, the Claimant was not formally put on notice that his conduct was the subject of a disciplinary investigation nor was he expressly and unequivocally told what was alleged against him and informed of the source of the allegations. Moreover, the existence of video evidence purporting to confirm his guilt was not disclosed to the Claimant or to his Union representative. Yet this evidence was taken into account by the Council and was given considerable weight by the investigating team in concluding that the Claimant was guilty of the misconduct alleged. In the Court's view these defects contravened the basic requirements of procedural fairness and were of such serious import as to render the investigation unfair and unsatisfactory.
The Court notes that at the appeal stage the existence of the video evidence was disclosed. Furthermore, the Claimant was, at his own instance, provided with an opportunity to view the video and to offer an explanation of what it disclosed. This could be seen as satisfying the requirements of natural justice in a way insisted upon by the Claimant himself. Nonetheless, in the circumstances of this case, the Court does not accept that a sufficiency of fairness at the appeal stage cured the clear unfairness which occurred at the initial stage at which the decision to impose a disciplinary sanction was taken.
In the circumstances the Court is of the view that the decision to uphold the findings of the investigating team in relation to the Claimant was unfair and unreasonable. The Court recommends that the decision be now set aside and that the allegation of misconduct against the Claimant be withdrawn. It follows that the suspension should be revoked and that the Claimant be restored to his original post.
The appeal is allowed and the Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
14th_June, 2006______________________
JO'CChairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.