FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : REHAB GROUP - AND - AN EMPLOYEE DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Failure by Company to Allow Employee have Representative of his Choice in Disciplinary Hearing
BACKGROUND:
2. The case before the Court concerns a claim by the Employee in relation to the failure of his Employer to allow him have representation of his choice as part of a disciplinary investigation which he is currently subject to. At the commencement of the formal disciplinary investigation the Employer adhering to the guidelines of its Disciplinary Policy and Procedure, allowed the Employee to be represented by a family member. It was not until a later stage into the investigation that the Employer for a number of reasons, formed the view that the Employee's representative was no longer deemed suitable and as a result could no longer allow the Employee's representative to participate in the disciplinary process. The Employer simultaneously offered the Employee the opportunity to nominate another representative however the Employee refused to do so.On the 11th November 2010 theEmployeereferred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 27th January, 2011.
The Employer's representative advised the Court by letter that they would not attend the Hearing but did enclose their written submission outliningtheir position on the matter in hand. The Employee agreed to be bound by the recommendation of the Court.
EMPLOYEE'S ARGUMENTS:
3. 1. TheEmployee contends that the Employer is denying him his right to choose his own representative in accordance with Company policy.
2. The Employer refused to continue the investigation with theEmployee's representative and the investigation is currently proceeding without the participation of the Employee.
3. TheEmployee is seeking the immediate re-instatement of his chosen representative.
RECOMMENDATION:
The matter referred to the Court under Section 20(i) of The Industrial Relations Act, 1969 concerned the Employee’s right to be represented by a representative of his choice in a disciplinary investigation. The Claimant sought proper representation in accordance with the Employer’s policy and procedure. At the hearing a number of other issues were raised which were not encompassed by the claim under section 20 (i) and consequently do not form part of this Recommendation.
The Employer failed to attend the hearing and was not represented at the hearing.
The Claimant’s representative informed the Court that the Employer’s policy allows for the Claimant to be represented at such an investigation by a person of his own choosing and accordingly the Employer must accept his nominated person as his representative in the disciplinary investigation.
Having considered all relevant aspects of the submission made on the Claimant’s behalf, the Court is of the view that the Claimant is entitled to be represented by a person of his own choosing, however, if that person is not acceptable to the Employer due to events which the Claimant’s representative informed the Court took place in or around the end of October 2010, then the Court recommends that the Employer should facilitate the Claimant by financing the retention of an alternative representative of his choice, for the purpose of accompanying him as his representative to meetings with the
Employer.
Furthermore, the Court recommends that the Employer should ensure that the investigation is carried out in an expeditious manner in accordance with its own procedure in so far as they are consistent with the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000.
The Court so Recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd February 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.