FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY TRANSPORT & GENERAL WORKERS UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Re-instatement on Driver's Payroll.
BACKGROUND:
2. The Worker was the subject of a disciplinary procedure as a result of a safety related incident that took place in Ceannt Station in Cork on 25th August, 2006. In December, 2006, the District Manager in Cork issued a decision to dismiss the Worker from his employment of 35 years.
The Worker appealed the decision to dismiss him to the internal Appeals Tribunal in accordance with Iarnrod Eireann's internal 'Grievance, Disciplinary Policies & Procedures' within seven working days. To date this appeal hearing has not taken place and the Worker is now suspended and on reduced pay.
The internal Appeals Tribunal was convened in the days leading up to Christmas 2006 and the Worker was invited to attend. The Worker refused the invitation to attend on the basis that he could not have his Trade Union representative from the ATGWU represent him at this forum.
The Worker is a member of a Trade Union without collective or individual bargaining/ representation rights for Locomotive Drivers. These rights are the preserve of SIPTU and the NBRU.
The issue could not be resolved at local level. The ATGWU referred the claim to the Labour Court on the 17th April, 2007, in accordance with Section 20(1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court's recommendation. A Labour Court hearing took place on the 14th November, 2007.
UNION'S ARGUMENTS:
3. 1. The Union maintains that from November 2006 to April 2007 Iarnrod Eireann made no effort whatsoever to convene a hearing of the internal Appeals Tribunal. This is totally unacceptable and a breach of the employee's entitlements to have his case heard within a reasonable time frame.
2. It is totally unacceptable that the Company reduced the Worker's pay from that of his 48 hour contract to 39 hours in mid-process.
3. The ATGWU maintains that it can represent staff members on discipline cases and also before the Employment Appeals Tribunal and the Labour Court. None of these entitlements has sundered or adversely affected Iarnrod Eireann's collective bargaining arrangements from the Company's point of view.
COMPANY'S ARGUMENTS:
4. 1. The Company has clearly followed its procedures in dealing with this case and in affording the Worker proper rights of representation in accordance with our agreements.
2. Objections to representation at the internal Appeals Tribunal from sources other than SIPTU & NBRU have been strongly made by these Trade Unions. If the Company were to depart from our agreements this would have serious repercussions for our internal Appeals Tribunal in addition to other agreements with our recognised Trade Unions within the Locomotive Driver grade.
3. The Worker has been afforded every opportunity for representation and indeed the options of being accompanied by a colleague or representation from full-time officials from SIPTU or NBRU are still available to him.
RECOMMENDATION:
The matter before the Court concerns the Worker’s claim to be re-instated on the train drivers' payroll. The Union on behalf of the Worker submitted that the Company was in breach of its own Grievance & Disciplinary Policies & Procedures in failing to convene an internal Appeals Tribunal to consider an appeal relating to the worker’s disciplinary decision. It maintained that because the Worker was a member of a Trade Union not recognised by the Company for collective bargaining purposes, he was not afforded an opportunity to be represented by a representative of his choice, in contravention of the Company’s procedures. The Union maintained that he had an equal right to representation to all other employees in similar circumstances.
The Company denied that it was in breach of its procedures. It informed the Court that the current structure of the internal Appeals Tribunal comprises of permanently appointed nominees in the roles of Chairperson, Company nominee and Trade Union nominee. It stated that the Worker was entitled to be represented by a work colleague at the Company’s internal Appeals Tribunal and stated that this was pointed out to the Worker in a letter dated 19th April 2007 from the Manager, Corporate IR Support. At the Court hearing the Company reaffirmed that the Worker was entitled to be represented by a work colleague regardless of whether such a colleague was a member of one of the recognised Unions or of the Union which was party to the Court’s proceedings.
The Company’s Grievance & Disciplinary Policies & Procedures states:
- 8. At the appeal hearing the employee may be present and may call witnesses. He/she may be represented by a fellow employee or a trade union representative when the appeal hearing is before a higher manager (clause 9).
9. The appeal hearing under 8 shall be before a higher manager where the disciplinary action invoked involves reprimand/severe reprimand/warning/severe warning and disciplinary action of a similar nature or where the employee is a temporary /casual employee or on probation. Where the disciplinary action invoked involves withdrawal of proficiency certificate(s), loss of pay increment, suspension, demotion, transfer, final warning, dismissal or action of a similar nature appeal will normally be before the Appeals Tribunal. However, the employee may opt to have the appeal heard by a higher manager.
Having given consideration to the submissions of both sides, the Court is of the view that the Company’s cconfirmation of the position as outlined to the Worker in the letter dated 19th April 2007 and as reaffirmed at the hearing is in compliance with the Company’s procedures. Consequently, the Court does not find that the Company was in breach of their procedures as claimed by the Union on behalf of the Worker.
Accordingly, the Court recommends that the Company should schedule an internal Appeals Tribunal to investigate the disciplinary sanction imposed on the Worker and he should be invited to attend with a representative, as reaffirmed at the hearing and outlined above.
The Court is further satisfied that the disputed issue of payment at basic pay (39 hours) during the period of suspension is in accordance with the “Grievance, Disciplinary Policies and Procedures”, Appendix 2:
- “Payment During Summary Suspension:
Staff summarily suspended from the duty will be paid basic rate of pay pending application of the formal disciplinary machinery……”
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th December, 2007______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.