FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : A LOCAL AUTHORITY (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no r-158141-ir-15.
BACKGROUND:
2. This case concerns (1) an appeal of the findings of an internal investigation into complaints issued by several of the Worker’s colleagues that he had secretly taped their conversation. This had affected the trust and morale of his shift.
The Worker was suspended for a period of 3 years and transferred to an administration role. (2) A claim for the loss of overtime earnings that were not available to the Worker while he was suspended from duties.
- The Union said that the Independent Investigator was under an obligation to determine whether or not the complaints made by the Worker’s colleagues were well-founded or not but he had failed to do so. The opportunity of overtime earnings in the Fire Service is an integral part of the operational requirements of the Service due to the necessity to maintain minimum manning levels.
The Employer said that the allegation of recording conversations was one of series of events which led the Council to accept that the relationship between the Worker and his colleagues was fundamentally damaged. The Worker was on full pay while on suspension. Overtime does not form part of normal pay, nor is it mandatory.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 16 December 2016 the Adjudication Officer issued the following Recommendation:-
- 1.That the claimant be compensated for the loss of overtime for the period 16thof November 2012 to date of hearing and that the overtime should be based on the average overtime earnings of his former station colleagues (four alleged victims of his attempt to record their conversation) during the actual period.
2.That the report of the investigator be set aside to allow for a proper technical evaluation based on the comments I have made earlier and that following the same the investigator would revisit his conclusion.
3.That an independent assessment be made of the cost of the herein grievance to date.
4.That an independent enquiry be conducted into the totality of these events with terms of reference set by the respondent with a view to making recommendations to prevent a recurrence. Obviously such an enquiry would necessarily evaluate the behaviour of all the actors within the herein grievance proceedings.
5.That an institutional review be undertaken in respect of workplace conflict resolution practice and procedure.
The Respondent appealed the Adjudication Officer’s Recommendation to the Labour Court on the 11 January 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 27 June 2017.
UNION ARGUMENTS:
3. 1. The Respondent appointed a Senior Executive Officer to conduct the investigation. His report did not issue until some 14 months into the Worker's suspension. The investigator was not able to make any definitive conclusion into the allegations against the Worker.
2. The Worker was unilaterally transferred from his position of Fire Fighter to an administrative post.
3 The Worker was denied the opportunity to work the overtime.
EMPLOYER’S ARGUMENTS:
4. 1. The nature of events leading up to the Worker’s redeployment are complex in nature.
2. An independent person was brought in to do the investigation. The Respondent took his recommendation and redeployed the Worker.
3. Overtime does not form part of normal pay, nor is it mandatory.
DECISION:
The Worker has been employed as a Fire Fighter by the Respondent since 2001. Four of the Worker’s colleagues on his shift complained in November 2012 that he had secretly recorded their conversation on his iPhone. An independent investigation into the complaint was conducted by a Senior Executive Officer of the Respondent in accordance with the Respondent’s Grievance and Disciplinary Policy. The Investigator’s report issued on 6 February 2014. The Report found that there was a clear conflict of evidence between the Worker and his colleagues such that the Investigator was not in a position to arrive at any definitive conclusion in relation to the allegations made against the Worker. The Investigator was, however, satisfied that trust and confidence had been significantly compromised between the Worker and his 4 colleagues and that the Station Officer was justified in so far as he had serious concerns about any future interaction between the parties in the context of the working environment.
In March 2014, the Respondent initiated a disciplinary process against the Worker in relation to the events of November 2012. The Worker, through his Union, sought to appeal the findings of the Independent Investigator’s Report. He was informed that he would not be permitted to do so as the Report would be considered in the context of the disciplinary process. That process concluded in November 2015. The outcome was that the Worker was transferred from his position as Fire Fighter to an administrative role. He has been absent on a number of periods of extended sick leave between November 2015 and the date of hearing of the within appeal (27 June 2017).
The Worker referred two complaints that are relevant to this appeal to a Rights Commissioner in July 2015: (i) one complaint relates to the Respondent’s refusal to permit him a discreet right of appeal against the Independent Investigator’s report ; (ii) the second is a claim for loss of earnings suffered by the Worker as a consequence of his redeployment to an administrative role. The Rights Commissioner issued his Recommendation on 16 December 2016 (r-158141-ir-15) in which he made the following 5 recommendations:
1.That the claimant be compensated for the loss of overtime for the period 16thof November 2012 to date of hearing and that the overtime should be based on the average overtime earnings of his former station colleagues (four alleged victims of his attempt to record their conversation) during the actual period.2.That the report of the investigator be set aside to allow for a proper technical evaluation based on the comments I have made earlier and that following the same the investigator would revisit his conclusion.
3.That an independent assessment be made of the cost of the herein grievance to date.
4.That an independent enquiry be conducted into the totality of these events with terms of reference set by the respondent with a view to making recommendations to prevent a recurrence. Obviously such an enquiry would necessarily evaluate the behaviour of all the actors within the herein grievance proceedings.
5.That an institutional review be undertaken in respect of workplace conflict resolution practice and procedure.”
The Respondent appealed the Rights Commissioner’s Recommendation on 11 January 2017. The Court heard the appeal in Dublin on 27 June 2017. It was agreed by both Parties at the outset of the hearing that the appeal would be confined to the Worker’s overtime claim and the Respondent’s refusal to allow him a discreet right of appeal against the conclusions of the Independent Investigator as in all other respects the recommendations of the Adjudication Officer were made in excess of jurisdiction.
The Parties’ Positions
(i) The Independent Investigator’s Report
The Union submits that the Independent Investigator was under an obligation to determine whether or not the complaints made by the Worker’s colleagues were well-founded or not but he had failed to do so. It further submits that the Investigator’s report was detrimental to the Worker’s interests and had failed to take proper account of certain technical evidence submitted by the Union to the Investigator. On the basis of the foregoing, the Union requested the Court to uphold the Rights Commissioner’s recommendation to the effect that the report should be set aside.
The Respondent submits that the Independent Investigator was perfectly entitled to arrive at the conclusions he did, and in particular to find that it was not possible for him to arrive at a definitive conclusion in relation to the allegations made against the Worker, having regard to the legal advice that he (the Investigator) received. The Respondent also submits that the report, in fact, made no adverse findings against the Worker and that it should not be set aside.
(ii) Loss of Overtime Earnings Claim
The Worker was suspended on full pay by letter dated 16 November 2012 and was kept on suspension for 3 years. The letter of suspension stated that he would be suspended on full pay and that the investigation would proceed without undue delay. Having regard to the Respondent’s commitments, the Union submits that the period of suspension should have been without prejudice to the Worker’s interests. However, he was denied the opportunity to benefit from overtime during the period of his protracted suspension. In the Union’s submission, the Court should disallow the Respondent’s appeal against the Rights Commissioner’s recommendation that the Worker “be compensated for the loss of overtime for the period 16thof November 2012 to date of hearing and that the overtime should be based on the average overtime earnings of his former station colleagues (four alleged victims of his attempt to record their conversation) during the actual period.”
The Respondent submits that the Rights Commissioner’s recommendation was incorrect in so far as it upheld the Worker’s claim for loss of overtime earnings as overtime is not mandatory and the Worker was paid his basic pay and all allowances in the nature of pay while suspended. The Respondent also submitted that the correct approach to calculating the loss in overtime earnings occasioned by the Worker’s suspension is not the method recommended by the Rights Commissioner.
Discussion and Conclusions
(i) The Independent Investigator’s Report
The Court has reviewed the Independent Investigator’s Report and finds that it contains no conclusions that are that could be characterised as adverse findings against the Worker. On this basis, the Court finds that the Respondent’s decision not to allow the Worker a discreet right to appeal the outcomes of the Report in a process separate from the disciplinary process did not substantively disadvantage the Worker in any way. The Rights Commissioner’s recommendation at point 2 is set aside.
(ii) Loss of Overtime Earnings Claim
The Court does not accept that the Worker has made out a case that would justify an award in respect of the loss of opportunity to achieve additional overtime earnings during the period of his suspension. The Rights Commissioner’s recommendation at point 1 is, therefore, also set aside.
For the avoidance of doubt, points 3 to 5 of the Rights Commissioner’s Recommendation are also hereby set aside.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
3rd July, 2017Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.