FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : PARK RITE UNLIMITED COMPANY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY DUBLIN SOUTH CITIZENS INFORMATION SERVICE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Recommendation No. ADJ-00016126 CA-00021005-001.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On 5 December 2018 the Adjudication Officer issued the following Recommendation:-
- “I recommend that the warning should expire on December 1st 2018. I also recommend that the complainant should accept the transfer to the new location and the respondent should construct whatever support mechanisms may be required to address concerns by the complainant in respect of possible issues arising on his return to work, as well as implementing whatever training it considers appropriate. I recommend the respondent review its approach to handling complaints from clients about its employees, and ensure that clients are aware of its (the respondent's) obligations to conduct independent, and fair processes in respect of possible disciplinary action against its employees.”.
The Employee appealed the Adjudication Officer’s Recommendation to the Labour Court on 14 January 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 11 March 2019.
DECISION:
This is an appeal by an employee against the Recommendation of an Adjudication Officer Adj-00016126 in a claim against his employer under the Industrial Relations Act, 1969 and concerns disciplinary sanctions taken against the Claimant in March 2018. The Adjudication Officer recommended that a Stage Two written warning should expire on 1stDecember 2018 and not as originally imposed – 12thMarch 2019. He also held that the Claimant’s transfer to a new location should take place with support mechanisms/training being put in place to address the Claimant’s concerns on his return to work.
The Claimant is employed as a Traffic Warden.
Having considered the submissions made by both parties at the hearing of the appeal, the Court notes that the first occasion that the Claimant became aware that there was a potential serious issue with his work necessitating his precautionary paid suspension was when the Employer wrote to him on 13thFebruary 2018 in a lengthy letter stating that complaints had been made by members of the public, local councillors and by the client County Council. In the letter it informed him that he was being suspended with pay pending an investigation, that he was being accused of“very serious allegations and serious acts of bullying, harassment or discrimination or aggressive, offensive, threatening or intimidating behaviour or excessive bad language which could be considered gross misconduct in nature”. It stated that should any of the allegations be upheld disciplinary actions up to an including dismissal could be taken against him.
The Court notes that these descriptions of the allegations differed from the incidents described in the complainants’ complaints. Furthermore, it notes that the complaints made appeared to be accepted by the Employer at face value, without corroborating or verifying them in any way. The Employer acknowledged that there were some flaws in the process, however, it contended that a perfect process was not required and that overall the process was not unfair. Furthermore, it stated that there were practical difficulties which restricted it from seeking further information from the complainants in cases where they were members of the public, local councillors and its client County Council. The Employer acknowledged that this posed difficulty in terms of carrying out an investigation which involved third parties as distinct from complaints involving its own employees under its Dignity At Work policy. However, notwithstanding this, the Employer argued that the sanction imposed, following a fair process, was appropriate and proportionate to the circumstances applicable in this case.
The Employer told the Court that it had written to the Claimant confirming, as per the Adjudication Officer’s recommendation, that the disciplinary sanction had expired with effect from 1stDecember 2018 and that the sanction would have no future effect. It was the Employer’s position, therefore, that the matter of the sanction was now moot before the Court.
The Claimant’s representative advised that the Claimant had been out sick since his period of suspension expired. The Court was advised that the matters had taken a toll on the Claimant resulting in personal medical-related difficulties. He now seeks to return to a different position, other than Traffic Warden, and seeks compensation for the effects of the disciplinary process which he deemed were unfair and not in accordance with the principles of natural justice.
With regard to the Claimant’s suspension, the Court notes the following position of the High Court inBank of Ireland v Reilly[2015] IEHC 241 in which Noonan J stated that: -
- “The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career……Thus, even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer…..Whilst of course it must be correct to say that the full panoply of fair procedures may not have been engaged at that stage, I cannot accept that basic fairness did not require at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response”.
Notwithstanding that the complaints were made by third parties who were not employees of the Employer, the Claimant’s rights to fair procedures still applied and the Court is satisfied that the Employer made no efforts to verify the complaints in any way.
In his submission to the Court the Claimant sought to return to work elsewhere in the company, i.e. other than as a Traffic Warden. The Employer outlined its strong commitment to the Court to bring the Claimant back to work, it promised to do everything possible to assist his return and stated that it would seek to accommodate him as vacancies arise which it will discuss with the Claimant. It stated that should he obtain a new position, it will be at the applicable terms and conditions pertaining to that role which may differ from his role as Traffic Warden. The Court endorses the Employer’s commitment and approach in this regard.
Having regard to all the circumstances and noting in particular the procedural deficiencies highlighted above, the Court, on an exceptional basis in relation to cases of this kind, is satisfied that an award of compensation is appropriate to the particular circumstances of this case and measures that compensation at €4,000. This should be paid to the Claimant within six weeks of the date of this Recommendation. No element of this award is in respect of pecuniary loss.
The Adjudication Officer Recommendation is varied accordingly.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
TH______________________
12 March 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.