FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY GEMINI SOLUTIONS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. That the Disciplinary Process be declared unfair and not in accordance with natural justice and fair procedures and subsequent sanctions to be lifted
BACKGROUND:
2. The worker is employed as an Emergency Medical Technician (EMT) in the Kilkenny Ambulance base. The case concerns an incident on the 14th May, 2006, and the subsequent disciplinary investigation. The events, briefly, are as follows: on the day in question the worker and his partner received an emergency call. However, the worker was not present at his ambulance base and his working partner had to attend the call with a colleague. Management viewed the incident as very serious and an investigation under Stage 4 of the Disciplinary Procedure took place by an agreed investigator. The investigator made his report in November, 2006, and a disciplinary hearing took place. The result of this was certain punitive and support measures and a final written warning. The worker appealed the outcome but, to date, has not attended an appeal hearing. The worker believes that the investigation and the sanction were unfair. Management's view is that it has made every effort to accommodate the worker.
The worker referred his case to the Labour Court on the 20th April, 2009, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th April, 2010, in Kilkenny. The worker agreed to be bound by the Court's recommendation.
WORKER'S ARGUMENTS:
3. 1. The worker admitted that he was absent at the time the emergency call was received but was on his way back to base when the ambulance left.
2. The investigator exceeded his terms of reference and allowed evidence which was outside his remit and not germane to the case (details supplied to the Court).
3. The worker has suffered great stress and anxiety as a result of the ongoing investigation. He has also suffered isolation and harassment from his Line Manager and colleagues because of the process. He believes that the sanction imposed was unfair.
HSE'S ARGUMENTS:
4. 1. The HSE has made every possible effort to accommodate the worker. The delay in having the appeal heard is entirely due to the worker's refusal to attend a hearing which he himself requested despite numerous dates being offered.
2. Management viewed the incident on 14th May, 2006, as serious misconduct which could have resulted in dismissal. This did not take place due to mitigating circumstances presented by the worker, and a lesser sanction was applied. However, to date none of the sanctions have actually been applied due to the worker's failure to attend the appeal process.
RECOMMENDATION:
The issue before the Court concerns the worker’s claim that the organisation’s disciplinary process in his case be declared unfair and not in accordance with natural justice and fair procedures. He also sought to have its subsequent sanctions lifted.
Having carefully considered the oral and written submissions of both parties the Court cannot concur with the claimant’s contention as it is evident that the organisation’s disciplinary process in this case has not been exhausted and no sanctions have been imposed on the claimant as a result. On 24th October, 2007, the claimant submitted an appeal of a disciplinary hearing which had been held on 16th October, 2007 into an alleged incident which occurred on 14th May, 2006.
Management stated that the claimant has not cooperated with the appeal which he has instigated thereby stalling the entire process.
The Court notes that the claimant’s appeal is still pending and the proposed disciplinary sanctions resulting from the disciplinary hearing on 16th October, 2007, have been held in abeyance in the meantime.
Based on the details contained in the submissions, the Court is satisfied that management’s use of the Disciplinary Procedures and in particular Stage 4 was correct and appropriate in the circumstances.
In all the circumstances of this case, the Court recommends that if the claimant does not resume the above-mentioned appeal within one month of the date of this Recommendation, then the appeal should be considered as abandoned by him. In such circumstances, management may proceed with the disciplinary process.
Furthermore, the Court recommends that in the event that the claimant decides to proceed with the appeal process then both sides must make every effort to ensure that it is dealt with expeditiously and in any event should be completed by not later than 25th June, 2010.
For the avoidance of any doubt the Court recommends that the claimant or a representative on his behalf must formally write to management indicating whether or not he is re-activating his appeal by the recommended deadline above - one month from the date of this Recommendation.
Finally, the Court notes that the claimant has withdrawn complaints he made under the Dignity at Work Policy.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th April, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.