FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : A COMPANY (REPRESENTED BY JW O'DONOVAN SOLICITORS) - AND - A WORKER (REPRESENTED BY MS MARIE CORCORAN) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00021425. “Having considered all the circumstances of this dispute I find that the investigation of the workers grievance was independent and fair and that the grievances investigated can now be considered concluded with no further action required by either party.” The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on the27th January 2020 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 4thSeptember 2020. The Worker submits that the Company is in breach of its own Grievance and Disciplinary Procedures. The Investigator failed to gather sufficient evidence during the investigation to reach a sound conclusion. There was no proper separation of roles between the Company, Commissioner of Investigation and Decision Makers. The investigation Terms of Reference allowed for an Appeal against any aspect of the Final Report, but no such Appeal was provided. The Investigation Reports issued afforded the Worker an opportunity to comment on the draft Reports by way of submissions, which the Worker did through his solicitor. The Final Investigation Reports were produced in accordance with the Terms of Reference agreed between the parties. The current CEO, then newly appointed, sought to facilitate a resolution of issues after the Reports were issued. At no time since the Final Investigation Reports were issued or during post investigation correspondence did the Worker raise an issue or complaint about witnesses not having been interviewed.
Neither party provided the Court with a copy of the Employer’s Grievance procedure. Worker’s submission It is the Worker’s submission that the process of the investigation was flawed as the Investigator failed to interview witnesses that the Worker identified. This failure led to the Investigator not gathering sufficient evidence to reach the correct conclusion. This failure was a breach of fair procedure and meant that the process was fundamentally flawed. The Worker does not dispute that he agreed Terms of Reference for the investigation and that he had representation throughout the process. Employer’s submission It is the Employer’s submission that the Investigation was carried out within the agreed Terms of Reference and in line with the Employer’s Grievance Procedure. The Worker had representation at all stages of the process and the fact that he does not agree with the outcome of the investigation does not mean that the process was flawed. The agreed terms of reference at point 3.1.3 state that the investigator “will make such enquires, conduct such interviews, examine such documents, seek such information and engage in such correspondence as she considers relevant and appropriate”.The decision by the Investigator not to interview the witnesses was well within the agreed terms of reference. In relation to the specific issue of the calling of witnesses identified by the Worker the Investigator dealt with that issue at page 40 of her report where she states“For the avoidance of any doubt I do not consider it necessary to meet with other attendees of the meeting because I do accept that Mr Walsh’s account of the meeting is likely to be the case.”. It is the Employer’s submission that by accepting Mr Walsh’s version of events the need to call witnesses did not arise. The Court having read the parties submissions and listened carefully to the oral submissions on the day does not find that the Investigation was flawed. The Court Recommends that the parties consider the matters closed and engage on a plan to return the Worker to the workplace. The decision of the Adjudication Officer is upheld. The Court so Recommends.
NOTE Enquiries concerning this Decision should be addressed to Noel Jordan, Court Secretary. |
