FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FAS - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Rights Commissioner Recommendation No: r-095383-ir-10/JOC
BACKGROUND:
2. This case is an appeal by the employer of Rights Commissioner Recommendation No: r-095383-ir-10/JOC. The issue concerns an instructor employed by FÁS who had disciplinary sanctions imposed on him after an internal investigation foud that he had treated a student in an inappropriate manner in the course of his duties. The issue was referred to a Rights Commissioner for investigation. His Recommendation issued on the 17th February, 2011 and found that, due to errors made by the employer in the investigative process, the one years' increment should be retrospectively restored to the worker but that the letter of warning should remain on the worker's file for a twelve month period as sanctioned.
On the 7th March 2011, the employer appealed theRights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 14th July, 2011.
MANAGEMENT'S ARGUMENTS:
3 1Management carried out its investigation in the appropriate way and in line with its own procedures. The matter could have been dealt with more satisfactorily if the worker had exhausted internal procedures instead of immediately referring the matter to the Rights Commissioner for adjudication.
2 The worker accepted that such behaviour was inappropriate and accepted the sanction that was imposed. This was confirmed by the worker in a letter to management prior to the matter going before the Rights Commissioner.
UNION'S ARGUMENTS:
4 1 The investigation was flawed and at variance with the organisations own procedures. The worker was not shown the questions that were put to other students during the investigative process nor was he given the opportunity to comment on the responses given. This is a fundamental flaw in the process and has denied the worker fair procedure.
2 The remarks made by the worker were not put into context or taken in the manner which they were meant. It is accepted by the worker that students deserve to be treated with respect. However, the worker does not accept that management handled the investigation in the correct manner or that the sanctions were appropriate in the circumstances.
3 The worker confirmed to management that he would comply with the sanction notwithstanding the referral of the matter to the Rights Commissioner. He never confirmed that he accepted the sanction as he clearly does not.
DECISION:
Having carefully considered the submissions of both parties in this case, the Court finds that, while there were shortcomings in the investigative process employed in this case overall it was fair to the complainant. The Court further finds that the sanction imposed by the Authority in this case was neither harsh nor excessive. Accordingly the Court upholds the appeal. The Rights Commissioner's recommendation is set aside.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
5th August 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.