LCR22359

1.Making False Accusations/ No Due Process

BACKGROUND:

2.This dispute concerns due process and compensation. The Worker referred this case to the Labour Court on 16 November 2020 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 3 February 2021.


WORKER’S ARGUMENTS:

3. 1. The Employer failed to apply proper grievance and/or disciplinary procedures.

2. The Worker had no opportunity to address allegations made against him.

3. The Worker wants to be permitted to return to the Distillery site and for the Company pay compensation.

EMPLOYER'S ARGUMENTS:

4. 1. The Company was put into an impossible position, due to absence of investigation and the Clients unwillingness to cooperate.

2. The Company could not prove nor disprove the Worker’s grievance.

3. The Worker has been offered opportunity to work at a different site, closer to home with the same roster and salary.


RECOMMENDATION:

The claims before the Court were brought under Section 20(1) of the Industrial Relations Act 1969 and concerns two claims by a worker that his employer failed to follow due process when he was removed from a client’s site and he claimed that he should be compensated for loss of earnings due to his removal from the site. In submitting his claims, the Claimant has in accordance with Section 20(1) of the Act undertaken to accept the Recommendations of the Court.

The Claimant was employed as a Security Officer with Pinnacle Security Limited (“the Company”) and had been assigned to work at the Law Library, Distillery Building on Church St, Dublin. He worked on that site for approximately 18 years. On 26th February 2020, the Law Library Properties Limited (“the Client”) informed the Company that due to an alleged incident which occurred that day that it required the removal of the Claimant from the site.

The Claimant submitted that this action caused him great distress and he has been absent on sick leave/Covid 19 imposed restrictions ever since. He submitted that having had no previous disciplinary issues with his employer and no opportunity to address the issues raised by the Client, his removal from the site by the Company without applying proper grievance and/or disciplinary procedures has resulted in him suffering loss both economically and in terms of his health and wellbeing.

The Company stated that it had made every effort to carryout an investigation of the events which led to the Client seeking the removal of the Claimant from its site on 26th February 2020. It had contacted the Client on a number of occasions seeking a report on the incident, details of the allegations in writing and/or witness evidence, however the Client refused to provide such information.

One of the Company’s managers had a meeting with the Client, however no information was forthcoming from the Client in relation to the incident. Therefore, it told the Court that an investigation into the alleged incident could not be conducted.

The Company stated that the Claimant is a longstanding employee who is held in high esteem, without any disciplinary sanction on its records. It stated that the Claimant had been fully apprised of the efforts it made to seek information from the Client in order to deal with the issue.

An alternative position was offered to the Claimant on 27th February 2020 to commence working in another location, closer to the Claimant’s home. The alternative position was on the same hours of work, rate of pay and terms and conditions of employment. It confirmed for the Court that when the Claimant is fit to return to work and when Covid 19 restrictions allow, the Claimant is entitled to avail of the position previously offered to him or he may be offered a suitable alternative position if available.

The Court was presented with a copy of Clause 5.2 of the commercial contract between the Company and the Client, which provides for a situation where the Client may request the removal of an employee “whom the Client reasonably deems unsuitable ….. and the Company shall forthwith comply with such request.”

The Court notes that the Claimant's contract of employment specifies that he must be flexible in his position, he must be prepared to undertake any other work that may be assigned to him by the Company from time to time and that he may be transferred or be required to work in any location during the course of his employment.

Having considered the position of both parties, the Court is of the view that by refusing to provide the information sought by the Company on the incident which allegedly occurred on 26th February 2020, the Client failed to meet its obligation in the contract to outline the circumstances giving rise to it “reasonably”deeming the Claimantas “unsuitable”,thereby making it impossible for any proper investigation to be carried out.

This resulted in a failure of due process for the Claimant, no opportunity for him to clear his name and a loss of the position he held for over 18 years. However, the Court cannot find that his employer can be held responsible for this as it made serious attempts to seek such information and conduct an investigation.

Having examined the circumstances leading to his loss of earnings, the Court cannot find that compensation is justified and accordingly does not recommend in his favour.

The Court recommends that when the Claimant is fit and restrictions allow, a meeting should be held between the Company and the Claimant to ascertain alternative suitable roles/locations which may be available for him to return to work.

The Court so Recommends.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
OC	______________________
10 February 2021	Deputy Chairman