FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL AMBULANCE SERVICE - AND - A WORKER (REPRESENTED BY KAREN TALBOT B.L., INSTRUCTED BY SMITHWICK SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Disciplinary process.
BACKGROUND:
2. The case concerns a claim by Claimant that he has been unfairly treated in respect of an incident in July 2010 which occurred in the course of his employment. The Employer said that the incident was of a serious nature and the Disciplinary Procedures were followed. On the 26th May 2014 the Claimant referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 7th October 2014.
WORKER'S ARGUMENTS:
3. 1. On the 16thJuly 2010, the Claimant and a colleague absented themselves from duty for a period of five minutes. A patient transfer call was allocated to the claimant and his colleague while they were absent. They returned to the station and carried out the call.
2. A full investigation was initiated by the employer. The Claimant continued to work until ill health caused him to take sick leave in August 2010. When the Claimant returned to work in January 2011 he was suspended from duty pending the outcome of the investigation.
3. The disciplinary process ran for over two years to September 2013. The Claimant’s suspension ran from January 2011 to September 2013 which was excessive and caused the claimant undue stress. The Claimant is seeking restoration of financial loss suffered by him in respect of the sanction and the previous one in May 2006. He also seeks restoration of the reputational damage caused to him in the workplace.
EMPLOYER'S ARGUMENTS:
4. 1. The Claimant left his post without seeking permission. As a result there was a delay in answering an emergency call and a Stage 4 investigation was initiated.
2. The Claimant received a final written warning for a period of twelve months and was demoted temporarily (for a period of six months) to Intermediate Care Operator.
3. As a result of the Claimants appeal, the disciplinary sanctions were amended to Stage 1 verbal warning from September 2013. The amended sanctions were applied and the Claimant returned to duty following a recertification and updating process. The Clamant is currently on sick leave following a cardiac episode and treatment.
RECOMMENDATION:
The matter before the Court was brought under Section 20(1) of the Industrial Relations Act 1969 and concerns a claim by a worker, employed as an Emergency Medical Technician/Paramedic, that he has been unfairly treated in respect of an incident which occurred in the course of his employment, on 16thJuly 2010, when he and a colleague absented themselves from duty without permission. As a result of this incident he was suspended from duty on basic pay and shift allowance from January 2011 until September 2013. The Claimant submitted to the Court that the extent of the delay and the enormity of the impact on the Claimant meant that the suspension was severely punitive and a fundamental breach of fair procedure, he was the subject of a very flawed process, subjected to undue stress and pressure in the workplace as a result of the unfair way in which the disciplinary procedure was implemented. The Claimant sought financial compensation for the loss of any shift premia and overtime payments amounting to €162,209 net of taxation and pension for both the effect of an earlier sanction imposed in respect of an incident which occurred in May 2006 which resulted in non-payment of increments and also for the excessively long suspension he endured. Furthermore, he sought to have his reputation restored.
The Court notes that the Claimant was initially given a severe disciplinary sanction however on appeal this was reduced to a verbal warning in line with that which his colleague had received in 2010 without investigation or suspension. The Claimant accepts that some fault may be attributable to him however; he has been subjected to inordinately protracted and punitive procedures as a result of management’s delay in handing matters.
Having considered the extensive written and oral submissions made by both parties the Court accepts that the Employer must ensure that the highest standards are achieved in this extremely critical service and on that basis accepts that a requirement for full compliance with its standards by employees is essential. However, the delays encountered in progressing the Claimant’s disciplinary process are inexcusable and have caused hardship in this case. In such circumstances the Court finds that the process fell short of the principles of natural justice and recommends that appropriate measures should be taken to ensure that such delays do not reoccur in the future.
While the loss of earnings submitted by the Claimant included a reference to an estimated loss of overtime earnings the Court does not recommend in favour of compensation in this regard. Inall the circumstances of this case the Court recommends that the Claimant should be compensated by the payment of a compensatory award of €5,000.00, due to the delays encountered in progressing the disciplinary procedures. Furthermore, in addition to the compensatory award the Court recommends that the“gesture of good faith”recommended by the Rights Commissioner in his recommendation dated 3rdFebruary 2012, where he held that“the claimant to be placed on the 4thpoint of the appropriate scale with effect from the 1stDecember ’11”should be fully implemented. This Recommendation was made in respect of his claim concerning the sanction imposed following the May 2006 incident.
Addendum:
The claim before the Court included a complaint by the Claimant in relation to a previous incident which had occurred on 6thMay 2006. This complaint had been the subject of a Rights Commissioner Recommendation issued on 3rdFebruary 2012. As that element of the claim had already been the subject of a Rights Commissioner’s hearing the Court had no jurisdiction to hear that aspect of the case.
Section 13 (10) of the Industrial Relations Act, 1969 prevents the Court from hearing a claim (except by way of an appeal) where it has already been heard by a Rights Commissioner.
- Section 13 (10) states:
The Court shall not investigate (except by way of appeal to it under subsection (9) of this section) a trade dispute in relation to which a rights commissioner has made a recommendation.
Accordingly, the Court had no jurisdiction to hear the Claimant’s complaint regarding the incident which occurred on 6thMay 2006.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
7th November, 2014.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.