FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9); INDUSTRIAL RELATIONS ACT; 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal Of Rights Commissioner Recommendation r-111388-ir-11/JC.
BACKGROUND:
2. This dispute arose from alleged tampering by the Worker with his handcart (after the refusal of a leave application) such that, due to injury, he was unfit for work (around the time for which leave had been refused). There was also a second incident relating to a meeting between the worker and the inspector regarding a change in parking arrangements for bicycles in the depot. The Worker had a newly-purchased electric bicycle and was concerned about the practicalities of the parking arrangements. This matter was referred to a Rights Commissioner for investigation and recommendation. On the 4th January, 2012 the Rights Commissioner issued the following Recommendation:-
- “Having considered all of the evidence presented to the hearing I recommend that as the Final Written Warning issued to the claimant on 25thNovember 2010 was upheld on appeal that the effective date of the Final Written Warning should be the 25thNovember 2010 and that the 12 month period of the Final Written Warning should expire on 24thNovember 2011. I recommend no change in the 5-day suspension period.”
On the 17thJanuary, 2012 the Worker appealed the Rights Commissioner's 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 1stJune, 2012.
UNION'S ARGUMENTS:
3. 1.The Worker’s duties with the Employer were performed fully during long service but he was badly injured at work on 24thSeptember 2011 such that he could not attend work on 25thor 26thSeptember 2011.
2.As the Worker had previously sought leave for 26thSeptember 2011 the Employer decided, without evidence, that he had injured himself by tampering with his handcart.
3.On the disputed and uncorroborated evidence of the inspector the Worker was disciplined for alleged threatening behaviour despite a finding by Management that there was no evidence to make a finding.
COUNCIL'S ARGUMENTS:
4. 1.The penalties imposed on the Worker, given their seriousness, were appropriate in the view of the Employer.
2.The Employer’s disciplinary procedure was properly exercised in respect of the Worker.
3.The Employerfelt justified in not paying sick leave for two days on which the Worker had been absent.
DECISION:
The Court has carefully considered the submissions of both parties to this appeal.
The Court finds that there was no substantial evidential basis for the findings made by Management in this case. Accordingly, they cannot stand and the proposed sanctions against the appellant are without justification.
The Court further decides that the two days sick leave withheld from the appellant amounts to a sanction that is not justified and cannot be maintained.
The Court is of the view that the retention on the appellant's personal file of any record of these disciplinary proceedings or associated documentation is prejudicial to his employment and career prospects within the City Council and should be removed with immediate effect.
The appeal is allowed and the Rights Commissioner's recommendation is set aside.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
3rd July, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.