FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MAYO COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner r-053987-ir-07/EOS
BACKGROUND:
2. This case concerns an appeal by Mayo County Council (represented by the Local Government Management Services Board- LGMSB) of Rights Commissioner's Recommendation r-053987-ir-07/EOS.
The issue in dispute concerns an allegation of misuse of Council property by the worker and his subsequent refusal to co-operate with the Council's disciplinary process.
Management's position is that the worker, who is employed in a supervisory role, used equipment belonging to the Council for his own personal needs and without the required permission. When he was asked to co-operate with the investigation into that incident, and another previous incident, he refused and was subsequently placed on administrative leave to allow for a thorough investigation to take place.
The Union's position is that Management's handling of the issue was seriously flawed. It had initially included an allegation that was allegedly unsubstantiated and unknown to the worker. As this unfolded, it is contended that the worker felt it inappropriate to be involved in Managements investigation of the alleged incidents.
The matter was subsequently referred to the Rights Commissioner for investigation. Her Recommendation issued on 5th June, 2008. In her decision the Rights Commissioner recommended that the parties enter into discussions in relation to the grievance procedures and specifically whether administrative leave is itself a form of sanction. The parties were also to discuss if terms of reference should be agreed between parties prior to such investigations taking place.
The Rights Commissioner also recommended that the written warning be reduced to that of a verbal warning, and on the basis of the financial loss associated with lack of premium earnings during the administrative leave, awarded the worker €5000 in compensation.
On the 26th June, 2008 Management appealed theRights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 16th April, 2009.
MANAGEMENT'S ARGUMENTS:
3 1 The worker had used equipment belonging to the Council without permission. This is unacceptable and inappropriate for a worker employed in a supervisory capacity.
2 Management made every effort to investigate the allegations in a professional manner but were not co-operated with. The worker was then placed on administrative leave while the investigation took place. This was not a form of sanction and would not be recorded on his personnel file.
3 It is not appropriate to enter into discussions in relation to amending the Local Authorities grievance procedures. Such procedures are agreed nationally betwen employers and worker representatives. They cannot be altered individually at local level.
UNION'S ARGUMENTS:
4 1 Management's handling of the incident was entirely unsatisfactory. In their letter to the worker they aluded to other allegations that were unknown to the worker.
2 Management failed to adhere to fair principles with regard to the investigation and did not agree terms of reference in relation to conducting the investigation.
3 As the worker was placed on administrative leave, he was paid only his basic rate of pay. He did not receive any premium earnings during that period, which was a form of sanction imposed prior to any conclusion of the investigation.
DECISION:
This is an appeal by the County Council of a Rights Commissioner’s Recommendation, which found against the Council in relation to disciplinary action taken against a worker.
By letter dated 23rd April 2007, it was alleged by the Council that the worker may have used Council property without authorisation and therefore he was to be the subject of disciplinary proceedings. By letter dated 1st May 2007, the Council outlined its allegations against him and included a previously unknown allegation. He was advised that all would be the subject of a disciplinary meeting. Subsequently, when his representative raised concern about the new allegation, it was withdrawn and became the subject of a separate enquiry. The Council’s investigation, which followed, found against him on one of the remaining allegations and disciplinary sanction was imposed.
Having considered the oral and written submissions of both parties, the Court finds that the inclusion of an allegation not previously notified to the worker in the letter dated 1st May 2007, was inappropriate and gave rise to the sense of mistrust in the Council’s procedures which resulted in his non co-operation with the process which followed.
However, the worker admitted that he may have misconducted himself and as he was in a Supervisory role with responsibility for thirty workers, the Court is of the view that it was appropriate to issue a disciplinary sanction for his actions. Accordingly, the Court decides that in all the circumstances of this case the appropriate disciplinary sanction was a Stage Two warning and therefore, the final written warning should be amended to a written warning. Furthermore, the Court does not concur with the Rights Commissioner’s Recommendation to award compensation of €5000 and accordingly does not uphold that recommendation.
Having examined the Council’s Disciplinary Procedures, the Court is satisfied that they comply with the “Code of Practice on Grievance and Disciplinary Procedures” S.I. No 146 Of 2000 and accordingly does not uphold the Rights Commissioner’s Recommendation that they should be the subject of negotiations with the Union(s) with a view to revision of the procedures.
The Rights Commissioner’s Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th May 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.