FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN GARDA SIOCHANA (REPRESENTED BY CLIONA KIMBER B.L. AS INSTRUCTED BY THE CHIEF STATE SOLICITOR'S OFFICE) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of a Rights Commissioner's Recommendation R-066977-Ir-08/SR
BACKGROUND:
2. The employer's case is that the worker failed to obey a reasonable instruction and abandoned an assigned duty. The worker was employed as a civilian driver by An Garda Siochana, and his duties included conveying Garda personnel, collecting/delivering dispatching, driving foreign dignitaries and driving escorted prisoners. The dispute concerns an incident on the 7th December, 2006. The worker was rostered to work from 8.30 a.m. to 4.30 p.m.. He was detailed to collect some foreign police personnel and convey them to Dublin Airport for 4.00 p.m. At approximately 2.30 p.m. he contacted his office and asked to be relieved of his duty. He was instructed twice to continue with his duty but refused to do so. He was informed that this was a severe breach of discipline and in contravention of his terms of employment. A disciplinary hearing was held and worker's behaviour was found to constitute gross misconduct. The worker was issued with a final written warning which would stay on his record for 18 months and a pay increment was deferred. Any further disciplinary issues could result in dismissal. The worker's case was that completing his assignment on the day in question could have involved him doing overtime and that he could not be compelled to do same.
The issue was referred to a Rights Commissioner and his recommendation was as follows:
"The claimant was directed and instructed in explicit terms not to abandon his post and to stay where he was, but he choose not to obey this reasonable and legitimate instruction.
The investigation in this case was carried out in full and strict accordance with agreed procedures.
There is explicit provision in the agreed disciplinary procedures for the withholding of increments.
The discipline imposed in this case was reasonable and fair in all the circumstances. The Complaint by the claimant is rejected."
The worker appealed the Rights Commissioner's recommendation to the Labour Court on the 9th January, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 4th March, 2009.
WORKER'S ARGUMENTS:
3. 1. If the worker had carried out the his duties on the 7th December, 2006, it would have involved him doing overtime which he did not want to do. His contract of employment expects co-operation regarding overtime, not compulsory overtime. The worker had an appointment that evening which he would have missed if he did overtime.
2. There was a delay of eight months before the disciplinary hearing took place. The worker's increment was stopped before the outcome of the enquiry was made known.
EMPLOYER'S ARGUMENTS:
4. 1. The worker was disciplined for not carrying out a reasonable instruction and for abandoning his post, not for refusing to do overtime.
2. The disciplinary action taken against the worker was entirely justified and he was clearly informed as to the mechanisms for internal and external appeals. The granting of increments is not automatic; in this case it was deferred pending the outcome of the enquiry.
DECISION:
The matter before the Court concerns an appeal by the worker of a Rights Commissioner’s Recommendation which upheld the employer’s actions and found that the disciplinary sanction imposed on him was fair and reasonable in the circumstances.
The Court notes that the worker was a civilian driver employed by An Garda S�ochana, covered by the Joint Industrial Council for State Industrial Employees “Code of Practice on Disciplinary Procedures”, and a designated person for the purposes of Section 23(3) of the Industrial Relations Act, 1990.
Having considered the oral and written submissions of both parties, the Court concurs with the findings and Recommendation of the Rights Commissioner.
Therefore, the Court rejects the worker’s appeal and upholds the Rights Commissioner’s Recommendation in full.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th March, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.