FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL GALLERY OF IRELAND - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner Recommendation No: r-137311-ir-13/Jt
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner Recommendation No: r-137311-ir-13/Jt. The issue concerns a disciplinary sanction imposed on the worker following the accidental activation of a fire alarm on the employer's premises. The Union contends that the worker had no knowledge or involvement in the activation of the alarm yet he was removed from his post and received a written warning following an investigation into the incident. The Union is seeking that the written warning be expunged from the worker's file and that he be returned to his duties in the Security room.
Management's position is that the alarm was activated from within the security room where the worker and his colleague were stationed and could be clearly heard by both workers immediately. Management contends that the workers assertions that he did not know how or where the alarm was activated is not credible. It further contends that the worker's lack of co-operation in the subsequent investigation raised doubts as to the reliability of the security system in place.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 26th March 2014 and did not find in favour of the worker's claim. On the 7th April 2014 the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 27th June 2014.
UNION'S ARGUMENT:
3 1 The worker knew nothing of the activation of the alarm on the day in question as he was reviewing the security monitors at the time of activation. The subsequent investigation and disciplinary process was flawed and did not afford the worker the principles of natural justice or fair procedures. The Union is seeking that the worker be returned to his position as part of the security team and that the warning, albeit expired, be permanently removed from his personnel fine.
MANAGEMENT'S ARGUMENT:
4 1 The fire alarm was activated by one of the two security staff in the control room. The Claimant denied any knowledge of or involvement in the incident and his subsequent lack of co-operation in the investigation led to doubts whether the fire alarm system was actually fit for purpose. In all the circumstances of the incident and subsequent investigation, Management contends that the written warning issued to the worker and his removal from the control room was an appropriate disciplinary sanction.
DECISION:
Having carefully considered the extensive written submissions and oral evidence in this case the Court finds that as follows:
1.That the Employer is entitled from to expect “Control Room” staff to fully co-operate with the management and investigation of any incident that poses a threat or potential threat to the safety and security of persons and property under their protection and that2.Failure to cooperate in such a fulsome manner could have disciplinary consequences for those that fail to so cooperate.
On examining the detail of this case the Court finds that the investigation Management conducted into the Claimant’s co-operation with the management and investigation into the impugned incident was flawed and the penalty imposed cannot stand.
Accordingly the Court decides that the warning issued to the Claimant should be rescinded.
The Court notes that Management also reassigned the Claimant, without loss of earnings, to duties outside the “Control Room”.
In this regard the Court further finds that Management advanced no grounds upon which it could reasonably conclude that the Claimant was unsuitable for appointment to duties in the “Control Room”.
However the Court finds that the allocation of duties to staff is an operational matter for management and it would be inappropriate for the Court to interfere in that discretion. Management should, however, give consideration to returning the Claimant to “Control Room” duties.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
16th July 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.