FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ARMY NURSING SERVICE, DEPARTMENT OF DEFENCE (REPRESENTED BY DEPARTMENT OF DEFENCE) - AND - A WORKER (REPRESENTED BY INMO) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner r-093468-ir-10/EH.
BACKGROUND:
2. The case concerns a dispute arising from an investigation into a complaint made by a Registered Nurse against a colleague, both of whom were employed by the Defence Forces at the naval base in Haulbowline, Cork. It is her view that the investigation and report carried out by the Defence Forces was inadequate and she is seeking to have the complaint properly investigated in a fair and impartial manner.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 7th January 2011, the Rights Commissioner issued his Recommendation as follows:
"I understand that the Defence Forces are controlled by the provisions of the Act of 1954 and Regulations made thereunder.... I accept that the Defence Forces applied the procedures laid out for such an investigation and they complied with that procedure.... I recommend that the Defence Forces appoint an Officer who is senior in rank to both Cdr. M and P.E. to again carry out a review of Cdr. T's report."
On the 3rd February 2011 the Union appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act 1969.
A Labour Court hearing took place on the 24th May, 2011.
UNION'S ARGUMENTS:
3. 1. The entire procedure represents considerable maladministration of the complaint by the Defence Forces.
2. Section 19 of Regulation A14 simply determines that a complaint shall be enquired into and no barrier to an independent enquiry is contained therein.
EMPLOYER'S ARGUMENTS:
4. 1. The procedures adopted in respect of this case were adequate in law and were correctly and fairly applied by the investigating Officer and the relevant superior authorities.
2. There is no requirement for the Labour Court to intervene to recommend further action in respect of the complaint.
DECISION:
The Court has carefully considered the extensive oral and written submissions of both parties in this case.
The Court has concluded that there are aspects of the investigation in this case that may render it unsafe and consequently possibly in some respects unreliable. Accordingly the Court has concluded, from the evidence presented, that a fresh investigation into the complaint should be conducted under the auspices of the relevant Statutory Code of Practice of the Labour Relations Commission as distinct from the previous investigation conducted under military law. The investigation should be carried out by an officer senior in rank to all those involved in this matter previously of the rank of Colonel or above or of equivalent rank and from a branch of the armed forces other than the Irish Naval Service.
The Rights Commissioner's Decision is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
10th October, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.