FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY PROFESSIONAL SOLUTIONS LTD) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Restoration of a worker's name onto Fire-Fighters Panel.
BACKGROUND:
2. The dispute concerns a worker who commenced employment with the Council in 1986. In March, 2005 he was based at one of the Council's Drainage Depots as a Timekeeper. Around this time he was the subject of disciplinary proceedings arising from alleged fraudulent overtime claims, which resulted in his being demoted and receiving a final written warning to expire after a period of twelve months. The Claimant was due to return to the employment on the 11th July 2005 but resigned on the 12th July, 2005. The Worker claims that six months later and in addition to the disciplinary actions directly related to his employment as Timekeeper, the Council without advising him that this was an issue in the original disciplinary proceedings, removed his name from the panel of Fire-Fighters which the Claimant had secured in open competition . The Worker claims that his name should be restored to the Fire-Fighters panel with effect from 3rd January, 2006 and that the disciplinary action taken against him be expunged with immediate effect from his personal record. The Council rejected the claim. The Worker sought to have the issue referred to a Rights Commissioner for investigation but the Council objected to such a referral on the grounds that it was not appropriate. On the 21st July, 2006 the Claimant submitted 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 on the 31st October, 2006.
WORKER'S ARGUMENTS:
3.1.The Council's decision was taken on foot of flawed investigation procedures. There was a lack of objectivity and transparency in the decision making process.
2. The Claimant had an exemplary work record and attendance and disciplinary record in the employment. He gave full cooperation and detailed explanations in relation to his overtime claims.He claimed overtime in a manner which all previous Timekeepers did as well. There were no formal agreements for some of the overtime claimed that was sanctioned by various members of Drainage Management.
3. The Claimant did not appeal the Council's decision due to a family bereavement and felt he could not deal with an appeal at that stage.The Council, when the bereavement was notified to it, could have displayed compassion by extending the closing date for an appeal against the decision to impose a disciplinary penalty. That it did not do so represents an over hasty and unfair process that does not demonstrate fairness or equity.
4. The Claimant was not advised at any stage during the disciplinary proceedings that his separate application for the post ofFire-Fighter was ever going to berelated to the disciplinary punishments imposed on him in respect of allegedly improperly claimed overtime payments, he was not given right as detailed in the Council's own Disciplinary Policy to know the case against him. The qualifications for the post of Fire-Fighter specified with regard to character that "Candidates shall be of good character". It does not state any other criteria. It is clear that a different and much higher standard was sought to be applied to the Claimant's case by the Council.
COUNCIL'S ARGUMENTS:
4.1. The Council carried out a detailed and comprehensive investigation in accordance with the Council's Disciplinary Policy. The Claimant failed to provide satisfactory explanations for a significant amount of the overtime claimed. He was afforded every opportunity to put his case forward, to avail of representation and to exercise his right to appeal.
2. The Claimant chose not to appeal the Council's disciplinary sanction. The disciplinary action taken against the Claimant could have been greater, but was proportionate to the case against him and the position of trust that he held. In effect the disciplinary action was never implemented as he handed in his resignation on the 12th July, 2005, the day after the action was due to take effect.
3. The removal of the Claimant from the firefighter panel was not part of the disciplinary action taken against him. It was simply the result of his unsatisfactory employment record. As with all Fire-Fighter applicants who have been placed on the panel the Claimant's employment record was not taken into consideration until his place on the panel came up in January, 2006, (six months after he resigned from Dublin City Council). His employment record was considered unsatisfactory and the Council refused to give any further consideration to his Fire-Fighter's application. The Claimant appealed this decision under the agreed mechanisms within Dublin City Council and his appeal was considered and rejected.
4. The qualifications for the position of Firefighter specify that candidates must be of "good character" and state specifically in relation to 'selected candidates ' that " Any offer of employment as Fire-Fighter is subject to receipt of satisfactory references from employers". Given the Claimant's disciplinary record in Dublin City Council, he did not meet this criterion. In all respects the Claimant was treated in the same manner as any other Fire-Fighter candidate with an unsatisfactory employment Record.
RECOMMENDATION:
It is clear that while the worker did not agree with the findings of the Council he nonetheless accepted the disciplinary sanction imposed on him and decided not to appeal within the internal procedures. The Court is satisfied that in making that decision the Worker had the benefit of advice from his Union representative and from the Council's Personnel Department. Moreover, the Court cannot accept that the investigation conducted by the Council was in any way flawed or unfair.
In these circumstances the Court accepts that the disciplinary sanctions imposed were fair and warranted on the facts established by the investigation.
In circumstances in which the worker had resigned while under disciplinary sanction the Court cannot conclude that the Council acted unreasonably in not appointing him to the post of Firefighter and in removing his name from the panel.
Accordingly, the Court does not recommend concession of the Worker's claim.
Signed on behalf of the Labour Court
Kevin Duffy
7th November, 2006
tod______________________
Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.