FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SLIGO COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY MC GOVERN WALSH & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioners Recommendation R-135594-Ir-13
BACKGROUND:
2. The Claimant and IMPACT were in dispute with the Employer in relation to procedures to be used in investigations into complaints made by the Claimant. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 31st October 2013 the Rights Commissioner issued the following Recommendation:-
- "While I do not accept that the Claimant's objections to the proposed Lead Investigator are well founded or reasonable in the interest of moving matters forward. I recommend that the Employer request that BTRG nominate an alternative person to act as Lead Investigator and that the Claimant accept that person. In relation to the terms of reference I recommend that the Claimant accept the proposed terms of reference including the amendments agreed by the Employer subject only to the Employer agreeing and including an indicative time frame for the conclusion of the Investigation which would only be extended in exceptional circumstances such as the unavailability of any of the parties or witness or any other unexpected occurrences and in such circumstances all parties would be notified in writing of the duration of the extension and the reason for any such extension."
On the 13th January, 2014 the Union 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 9th May, 2014.
UNION'S ARGUMENTS:
3. 1.The Worker believes that Sligo County Council does not give sufficient weight to its obligation to comply with the best practice in adhering to the principles of the Department of Jobs, Enterprise and Innovation's Code of Practice for addressing bullying in the workplace.
2.The Worker believes that he should have the right to have an input into or selection of the investigator. The Worker also stated that he would be willing to proceed with the process if the choice of investigator was not an academic or Barrister.
3.The Worker requested the right not to have interviews audio recorded without being given an audio-copy of the recording.
EMPLOYER'S ARGUMENTS:
4. 1.On 25th March 2013 the Worker was advised in writing of the proposed appointment of Baker Tilly Ryan Glennon (BTRG) and the proposed terms of reference.
2.The Employer is satisfied that it dealt with this matter as expeditiously as possible and the sourcing of an investigator was concluded without unreasonable delay.
3.The Worker alleges that the Employer has acted neither expeditiously nor fairly in this matter and this is simply not true. The Worker has at times sought time extensions and has also delayed the process by his unwillingness to accept the investigator nominated by the Employer.
DECISION:
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation which concerned the processing of grievances he made to the Council under its Dignity at Work policy. The Appellant disputed the procedures to be used in the investigation and referred his dispute to the Rights Commissioner for investigation.
Having engaged in a procurement exercise as it is obliged to do, the Council selected Baker Tilly Ryan Glennon (BTRG) to carry out the investigation required under the policy. BTRG advised the Council of the two investigators it intended to carry out the investigation. The Appellant objected to the choice of investigators and sought to nominate persons with backgrounds which were not reflective of just one side of the workforce.
Having considered the submissions of both parties the Court is of the view that the Rights Commissioner’s Recommendation should be varied as follows:-
- 1.As per the Rights Commissioner BTRG should continue to provide investigators to carry out the investigation, however, in the light of the submissions made the Court is of the view that BTRG should make every effort to ensure its chosen investigators have the appropriate professional backgrounds.
- 2.The Court notes that the Terms of Reference as previously amended for the investigation are accepted.
- 3.The Court notes that the Council has no objection to the Appellant using his own audio-recording device during interviews. Otherwise the Court is of the view that normal investigation procedures should apply.
- 4.In respect of the Appellant’s objection to two named members of Management being involved in the process, the Court is of the view that if they have a material interest in the investigation they should step aside at this point. Otherwise, if it transpires during the process of the investigation that they have a material interest in the issues being investigated, they should withdraw from the investigation at that point.
- 5.The Court recommends that all parties should co-operate with BTRG’s nominated investigators and the investigation process should be completed in a timely fashion.
The Rights Commissioner’s Recommendation is varied accordingly. The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
17th June, 2014Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.