FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN STREET PARKING SERVICES (REPRESENTED BY IBEC - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. An appeal of an Adjudication Officer's Decision no(s) r-155077-ir-15/EH and r-156035-ir-15/EH.
BACKGROUND:
2. This case concerns two incidents involving the Appellant which occurred in September and December 2014. Following two disciplinary processes the Appellant was issued with a Final Written Warning and suspended for one week without pay.
- The Union said the disciplinary processes were flawed and that the Claimant had been subjected to extreme provocation in the circumstances.
The Employer said all aspects of the disciplinary processes were conducted in accordance with fair procedures and in accordance with the Company Disciplinary Procedures.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 30th October 2015 the Adjudication Officer issued the following Recommendation:-
- On the basis that the Claimant gives an unqualified assurance to the employer that he will desist forthwith from aggressive behaviour then I recommend that the Final Written Warning and one week suspension is withdrawn.
I recommend that the Second Written Warning is affirmed and not to expire until June 30th 2016.
I recommend that the claimant pays €300 for the damages caused to the machine.
- On the basis that the Claimant gives an unqualified assurance to the employer that he will desist forthwith from aggressive behaviour then I recommend that the Final Written Warning and one week suspension is withdrawn.
The Union on behalf of the Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the 20th November 2015 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 7th January 2016.
UNION’S ARGUMENTS:
3. 1. The Adjudication Officer was correct in finding that the procedures applied by the Employer were flawed in respect of both the first and second incidents, and that he did not intentionally or maliciously damage any property.
2. The Appellant takes issue with the finding that he acted aggressively in the first incident; he submits that the Adjudication Officer did not take due consideration of the circumstances.
3. The Adjudication Officer’s recommendation that he give ‘an unqualified assurance that he will desist forthwith from aggressive behaviour’ is presumptuous and offensive to him.
EMPLOYER’S ARGUMENTS:
4. 1. The Appellant was instructed to undertake a task on 16th September 2014 that is a core aspect of his duties. He refused and reacted in a very threatening and intimidating manner. Under these circumstances the Company was justified in issuing the Appellant with a Second Written Warning.
2. On the 16th December 2014 damage was caused to Company property which the Appellant admitted he caused. Following an investigation and a disciplinary process the Appellant was issued with a Final Written Warning and was also suspended for one week without pay.
3. It is the Company position that the issuing of a Final Written Warning to the Appellant was a fair and reasonable disciplinary sanction under the circumstances.
RECOMMENDATION:
This is an appeal by the Union on behalf of a worker against an Adjudication Officer’s Recommendation which recommended that in return for an unqualified assurance from the Appellant that he would desist forthwith from aggressive behaviour, a less severe disciplinary sanctions than that imposed by the Employer should apply. Accordingly, the Adjudication Officer recommended that the Appellant receive a second written warning to expire on 30thJune 2016. The Adjudication Officer also recommended that he should pay €300 for the damage caused to a clocking machine.
On appeal when taking consideration of all the circumstances of this case into account, the Union requested the Court to amend the disciplinary sanctions further and to remove the conditional aspect of the Recommendation.
The Court has taken account of the written and oral submissions of both parties and having considered all aspects of the case, the Court sees no reason to change the Adjudication Officer’s Recommendation and accordingly upholds its Recommendation.
Therefore, the Appellant’s appeal is dismissed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
13th January, 2016Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.