FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EUPREIA LIMITED T/A DINGLE HOTEL & PENINSULA (REPRESENTED BY HR BUSINESS SOLUTIONS) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal Of Rights Commissioners Recommendation r-125304-ir-12.
BACKGROUND:
2. This dispute concerns the issuing of a written warning to the Worker. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 11th December, 2012 the Rights Commissioner issued the following Recommendation:-
- "The claim is dismissed as the [Worker] was not present to present the claim."
On the 21st January, 2013 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 2nd October, 2013.
3. 1. The worker was denied his fundamental right to fair procedures.
2. The company failed to investigate the allegations in an impartial manner.
3.Given the serious flaws in the investigation the worker should never have received a written warning.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker decided to take his break and leave the premises during the busiest time of the day.
2. The Worker could easily have taken his break when it was less busy.
3. The Company clearly followed its own policies and procedures in investigating the incident.
DECISION:
The matter before the Court concerns the worker’s appeal of a Rights Commissioner’s Recommendation. As the worker was not present at the hearing before the Rights Commissioner his claim was dismissed.
The Union on behalf of the Appellant explained to the Court the reasons for the failure to attend before the Rights Commissioner.
The Appellant was furnished with a written warning due to his unauthorised absence from the workplace on 23rdFebruary 2012. At this time the Appellant was on a disciplinary verbal warning which had been imposed on 19thApril 2011 for a 12-month period.
The Union claimed that the disciplinary sanction imposed on the Appellant in April 2012 was inappropriate in the circumstances and should be removed from his personnel file. The Union further submitted that there were procedural flaws with the disciplinary process which were not in line with Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000. Specifically it held that the fact that the person who made the complaint of absence was also the one who investigated the complaint and finally imposed the disciplinary sanction on the Appellant. Secondly, witness evidence was not presented to the Appellant for observation/comment before the sanction was imposed and that the disciplinary charge went beyond the scope of the original charge.
The employer submitted that the written warning given to the Appellant in April 2012 was appropriate given that he was a senior member of staff and his absence occurred at the busy service time in the Hotel. The employer disputed the Union’s contention that there were procedural flaws in the process.
Having considered the oral and written submissions, the Court is of the view that under the particular circumstances which were present on the evening in question, where the Appellant had reported to work an hour earlier to meet work demands, where he was in a position to self-authorise a break and accordingly informed other members of staff of his movements the Court takes the view that the sanction imposed was too severe and did not adequately satisfy procedural fairness.
However, as the Appellant had sole responsibility to ensure the kitchen was functioning properly that evening the Court is of the view that a level of disciplinary sanction was appropriate in the circumstances and accordingly is of the view that the verbal warning sanction imposed on 19thApril 2011 should have been extended for a further period of six-months.
Accordingly, the Court upholds the Union’s appeal and overturns the Rights Commissioner’s recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th October, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.