FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IRISH CEMENT LTD (REPRESENTED BY BYRNE WALLACE SOLICITORS) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation R-129558-IR-13/GC.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of Rights Commissioner's Recommendation R-129558-IR-13/GC. The dispute relates specifically to the Worker's claim that he was unfairly disciplined by his Employer following alleged workplace incidents. It is the Worker's position that the disciplinary procedures followed by the Employer were flawed and furthermore the sanction of a final written warning imposed on him was unwarranted in the circumstances.The Union on behalf of its member is seeking the removal of the sanction from the Worker's personnel record. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 21st February 2014, the Rights Commissioner issued his Recommendation as follows:
"Throughout the process undertaken, I note the lack of separation between investigation and disciplinary procedure. I further note that the Claimant was issued with the final written warning by the same manager who carried out the investigation. He was also not informed of the potential consequences of his actions if found guilty. These essential elements which are contained in S.I. 146 of 2000 were missing from the process. In the circumstances, I recommend that the sanction be withdrawn".
On the 3rd April, 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 5th November, 2014.
UNION'S ARGUMENTS:
3. 1. The Union contends that at no stage was the Worker notified that the disciplinary procedure had been formally invoked by the Employer.
2. The procedures undertaken by the Employer were flawed and did not adhere to the principles of Statutory Instrument No. 146 of 2000.
3. The principles of natural justice were not afforded to the Worker in this case.
EMPLOYER 'S ARGUMENTS:
4. 1. A fair and thorough investigation was carried out and the sanction imposed on the Worker was warranted taking into consideration the seriousness of the allegations made.
2. The Employer contends that the Worker was afforded fair and proper procedures at all times.
DECISION:
The Court notes that the Employer accepts that the normal procedure for investigating and dealing with complainants of misconduct was departed from in this case for reasons that were explained by the Employer. However, the Court is not satisfied that either the Union or the Claimant were informed at the commencement of the process that, contrary to normal practice, the investigation stage and the disciplinary stage of the procedure was being conflated in this instance.
The Court also believes that, from an industrial relations perspective, the use of the disciplinary procedure was not an appropriate mode of dealing with the issue that allegedly occurred in the course of picketing while the Claimant was on strike and his contract of employment was in a state of suspension.
In all the circumstances the Court has come to the conclusion that some disciplinary action was justified in this case but for the reasons referred to above the sanction imposed should be reduced. It is the decision of the Court that a written warning be substituted for the final written warning imposed. That written warning should be effective from the same date as the final written warning and, in accordance with the employer’s procedure, should be deemed to have been effective for 12 months from that date. Accordingly it should now be regarded as expired and should not be maintained on the Claimant’s file.
This Decision is substituted for the Recommendation of the Rights Commissioner.
Signed on behalf of the Labour Court
Kevin Duffy
21st November 2014______________________
SCChairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.