FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SHANNONDOC LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Recommendation of Rights Commissioner's Decision r-132762-ir-13/GC.
BACKGROUND:
2. Shannondoc is a co-operative Company limited by guarantee in partnership with HSE-West, whose purpose is to provide out-of-hours GP service to patients.
The matter before the Court concerns a Worker employed as a Driver who is disputing disciplinary sanctions imposed on him after two incidents that were outlined to the Court.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 10th January, 2014, the Rights Commissioner issued her Recommendation as follows:-
"Having considered the evidence and submissions in this case I find as follows:-
The Claimant was subject to an investigation and disciplinary process into two incidents:
1. That he was uncontactable when an urgent medical case arose before the end of his shift.
2. That he did not fulfil a rostered shift and did not provide appropriate notice or submit a proper written request to be removed from that duty.
There is no doubt that these issues were of serious concern to Management. The reliability of the service is vital to the Respondent Company and it is also not unreasonable on the part of the Company to require an employee to request a change of duty rather than submit a statement of withdrawal from a particular duty as the Claimant did in this case.
However, on reviewing the process, I note that there were a number of flaws. It is long established that there should be separate personnel in each stage of the disciplinary process, and in this case the Manager who imposed the original suspension then became initially involved in the investigation. This however, was rectified at the early stage of the process.
I note that the circumstances of the conclusion of the disciplinary meeting of 7th March, 2013 are in dispute. The Claimant's Representative was under the distinct impression that the panel would revert having consulted Management on procedures. The next communication then was received by the Claimant informing him of the outcome of the process, which was a severe sanction.
In these circumstances I find that the sanction imposed should be rescinded".
On the 3rd February, 2014 the Employer 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 30th April, 2014.
UNION'S ARGUMENTS:
3. 1. The presumption of innocence, the right of the Worker to hear and if necessary be afforded the opportunity to challenge evidence and the entitlement to an impartial hearing were denied him in this case.
2. The sanctions imposed were excessive.
3. The procedures used were not in compliance with the Company's own disciplinary code.
COMPANY'S ARGUMENTS:
4. 1. The alleged procedural flaws are without substance.
2. The Court must consider what a reasonable employer would do given the possible serious consequences of the actions of the Worker. The Company acted properly in imposing the disciplinary sanctions at issue.
3. The findings and sanctions imposed were reasonable in all the circumstances of the case
DECISION:
Having carefully considered the submissions of both parties to this dispute the Court finds that the sanction imposed in this case was excessive.
The Court finds that the "Final Written Warning" was not warranted and decides that it be replaced with a "Written Warning" within the meaning of the "Disciplinary Procedure". The Court further decides that the unpaid suspension and consequent loss of pay applied to the Claimant was not warranted. The Court decides that the Claimant should be reimbursed the loss of earnings he suffered as a result of the unpaid suspension applied.
Finally the Court notes that the parties are committed to engaging with a view to addressing shortcomings in the agreed procedures in place in the Company.
The Rights Commissioner's Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
26th May., 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.