Complainant

Respondent

Parties

Alan  Douglas

Connect Trade Union

Representatives

Gerard Kennedy , SIPTU

 Eamon Devoy, Advisor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00031544-001

14/10/2019

The Complainant was employed as a Trade Union Official and alleged he was unfairly dismissed for refusing to move temporarily to Dublin from Limerick on the basis it was not part of his contract of employment nor is it part of his defined role.  The Hearings were held over five different days commencing on February 20th 2020 but due to Covid, was delayed for a period of time with the final Hearing held on March 3rd 2022 and a further period then was required for post Hearing submissions on various issues.  As an observation, any dismissal dispute between two Parties is always difficult and stressful but especially so when it Involves a Trade Union Official and a Trade Union, as the Respondent employer. It is for this reason I have chosen to give as much detail as I considered appropriate to ensure I try and thoroughly reflect all the various issues raised by both Parties in their comprehensive submissions on both the substantive and procedural issues involved.

Background to the Complaint

The Complainant alleged his dismissal was unfair both on substantive and procedural grounds.

The Complainant commenced employment with the Respondent on 04/12/2015 in the capacity of Designated Official (Construction) and was issued terms and conditions of employment reflecting this position.  The decision to dismiss the Complainant arose in circumstances whereby he refused to co-operate with a disputed instruction issued by the Unions General Secretary (Mr. Kavanagh) requiring the Complainant to relocate from his position based in Limerick to a position in Dublin for an undefined temporary period.

It was maintained that this instruction was not compatible with either the Complainants contract of employment or his defined role within the Union. It was further contended that the disputed instruction was both unfair and unreasonable and that the Complainant was within his rights to refuse to comply with same given the circumstances that he had found himself in.

The Complainant was dismissed by the General Secretary, Mr. Kavanagh on the 04/07/2019 with two- week notice paid in lieu.

In addition to the construction role the Complainant also had responsibility for servicing the needs of the Respondent in Region 5 (Limerick / Clare) and was de facto the Regional Secretary for this region.

The terms of employment issued to the Complainant were quite specific in determining that the Complainant was required to work and reside in the Limerick area and that the cost’s associated with establishing a residence within the region were solely his responsibility. There are no provisions or mobility clause in the terms issued requiring the Complainant to relocate on an involuntary or contractual basis.

The Complainant contented that the disputed instruction issued by Mr. Kavanagh was issued as a means of unfairly and unreasonably dealing with an internal industrial relations dispute arising from complaints issued by one of the Complainant's colleagues who is employed as an Administrative Assistant who also works out of the Limerick Office. These complaints as raised by the Administrative Assistant related to the Complainant's alleged interactions with her. These complaints remain unsubstantiated and have not been the subject of any formal investigation. The Complainants "right of reply" to these complaints remains outstanding and it was the Complainants contention that the proposed relocation was prejudicial to his good name, professional standing and was a clear violation of the Complainant's contract terms, his entitlement to fair procedures, natural justice and due process.

In September 2018, the Complainant attended an investigation meeting relating to a concern, raised by the Complainant, in respect of a potential breach of membership data that had emanated from the Limerick Office. The investigation team consisted of Mr Sean Heading (Regional Secretary) and Ms Tamara Harte (Staff Manager). During this meeting the Complainant was advised that his colleague, the Administrative Assistant in his branch, had raised 4 complaints in respect of her interactions with the Complainant. The Complainant was not given any prior indication that these matters were going to be raised in the context of this investigation. The Complainant was requested to respond to these allegations but declined as he wished to see the complaints in writing and required that the allegations either be substantiated or withdrawn. The Complainant, in written format, subsequently sought copies of the allegations on both the 30/11/18 and 13/01/18 and was eventually furnished with same on the 16/01/19, some 16 weeks after the Complainants initial request.

On the 19/10/2018, the Complainant met with Mr Brian Nolan, Assistant General Secretary in respect of the outcome of the initial investigation and was advised that Mr. Kavanagh would be dealing with the allegations in due course.

On the 14/12/18 the Complainant met with Mr. Kavanagh in Portlaoise. In the course of what was supposed to be an informal meeting the Complainant was advised of the intention of Mr Kavanaugh to relocate him to the Dublin region and that the decision was being underpinned by concerns expressed by Mr. Kavanagh in respect of the Complainant's (A) lack of experience, (B) Age (C) Capabilities & (D) Mental Health. Mr. Kavanagh went on to advise that a meeting had been arranged for the following Monday 17/12/2018 to be chaired by Mr. Heading and Ms Harte and that the Administrative Assistant would be attending with her representative. The note of that meeting prepared by Mr. Heading gives a clear indication that the relocation issue had been the subject of discussion between Mr. Heading and Mr. Kavanagh in advance of the meeting. During the course of the meeting, both the Complainant and the other staff member had agreed to further discussion in early January in an effort to reach an agreeable resolution.

On the 21/12/2018 the Complainant received a telephone call from Mr. Kavanagh during which the Complainant was requested for his personal email address as Mr. Kavanagh wished to forward him correspondence that he did not wish to send through the office email system. The correspondence in question was received by the Complainant on 02/01/2019. The correspondence asserted that the Assistant General Secretary had requested assistance in an organising campaign and that the Complainant was to be relocated to Dublin while his responsibilities in Limerick were to be assigned to Mr. Heading. In that regard the Complainant was requested to report to the Dublin Office with effect from the 14/01/19.This decision was communicated to the local Union Branch by way of letter dated the 07/01/19.

On the 08/01/19 on return from annual leave the Complainant issued a comprehensive response to Mr. Kavanaghs letter and decision clearly disputing the decision and confirming that he would not accede to a transfer to Dublin.  In response, Mr. Kavanagh issued a further letter dated the 11/01/19 reaffirming his instruction and despite Mr. Kavanaghs stated concerns in relation to the Complainant's mental health indicated that he would take whatever action deemed necessary to compel the Complainant to adhere to his instructions. In response, the Complainant, on the 13/01/19 again confirmed that he would not be stepping outside of his contract terms and requested the opportunity of addressing the Executive Management Committee of the Union in respect of the issues involved. This request was not acceded to.

On the 16/01/19 Mr. Kavanagh issued a further letter to the Complainant with a number of attachments. In the body of this letter Mr. Kavanagh issued an invitation to the Complainant to attend a further meeting. As requested the Complainant met with Mr. Kavanagh and the Assistant General Secretary, Mr Brian Nolan. At that meeting and at the request of the General Secretary, the Complainant agreed to withdraw the previous correspondence. The withdrawal of these letters was undertaken on the understanding that this would allow for further negotiation and the possibility of an agreed resolution of the dispute. The meeting was followed up with a further meeting on the 23/01/19. In the course of this meeting the Complainant requested an end date on any proposed relocation. None was forthcoming. In addition, the position of the General Secretary in respect of requiring the Complainant to relocate to Dublin remained unchanged.

On returning to work in the Limerick Office on the 28/01/2019 the Complainant was informed that his colleague, Mr. Heading, had been given responsibility for the region and that instructions had been issued to the Administrative Assistant that she should only work with Mr. Heading. Given this to be the case the Complainant again wrote to Mr. Kavanagh on the 01/02/19 reiterating his objections, reinstating his previous correspondence and advising of a referral of this dispute to the WRC. Mr. Kavanagh responded on the 04/02/2019 again issuing an instruction to the Complainant to report to Dublin.  This letter was followed by an email of the 07 /02/ 19 advising that the Complainant would be required in Dublin for 3 days per week for a maximum of 6 months. The Complainant again responded by way of letter dated the 11/02/2019 setting out his objections to the proposed relocation, clarified that the suggestion of 3 days per week in Dublin was not agreed and had only been muted as a potential settlement of the issues in dispute and insisted that his position in the Limerick Office be reaffirmed. On the 6/03/19 the Complainant received confirmation that Mr. Kavanagh had escalated matters to the Unions Executive Management Committee for investigation under the Disciplinary Procedures. The Complainant engaged in this process and attended an investigation meeting on the 20/03/2019. The Investigation Committee consisted of 2 members of the Executive Management Committee (EMC)Mr. Sean Treacy and Mr. Peter Lanigan. The third member of the committee was Mr. Donnacha McRaghnall, one of the Unions trustees. The committee were accompanied by an Officer of the Irish Congress of Trade Unions, Mr. Peter Rigney. As part of the investigation, in addition to interviewing the Complainant the committee also interviewed Mr Paddy Kavanagh, Mr. Brian Nolan and Mr. Derek Beegan. The notes of these interviews were not provided to the Complainant at any stage of the process. The report which recommended that the issues involved be the subject of a disciplinary hearing was not issued in draft format for the Complainants consideration or correction. Instead the investigation report was put before the Unions Executive Management Committee on the 12/04/2019 for consideration. The report, as confirmed in the minutes of the meeting, was adopted by a ballot of the members present. Based on these minutes it was confirmed that two members of the Investigation Committee took part in that ballot to endorse their own report and recommendations.

The Complainant received a copy of the investigation report from Mr. Kavanagh on the 16/04/19 after it had been adopted and subsequently received a letter dated the 24/04/19 from Mr. Kavanagh instructing him to attend a disciplinary hearing. This letter did not outline a disciplinary charge. Neither did it identify that the hearing could result in the Complainant's dismissal.

On the 26/04/19 the Complainant Representative wrote to Mr. Kavanagh setting out a number of concerns and questions relating to the process The letter identified that:

The individual charged with overseeing the disciplinary hearing had not been identified

The disciplinary procedures being relied on were not identified

The substantive issue relevant to the investigation report was at that time the subject of an adjourned Adjudication hearing

That members of the Investigation Committee had participated in the ballot endorsing the report

That in making its decision to accept the recommendations in the report the EMC had not been provided with copies of the Complainant's correspondence that he had issued in his defence.

Mr. Kavanagh by way of letter dated the 03/05/19 responded confirming the following:

Mr Frank Keoghan had been appointed to convene the disciplinary hearing {The letter did not confirm as to how Mr. Keoghan had been selected or by whom)

The letter confirmed the disciplinary procedure being used (This procedure had been disputed at investigation stage)

That it was the Unions intention to proceed with the disciplinary hearing despite the issues involved being before the WRC

That the Union were quite prepared to stand over their procedures. However, Mr. Kavanagh did confirm that the investigation report would be resubmitted to the EMCA minus the members of the Investigation Committee

The letter did not address the concerns raised by the Complainant Representative in relation to the fact that the EMC had made its decision in the absence of having sight of the Complainant defence as outlined in his correspondence.

On the 15/05/19 Mr. Kavanagh confirmed that the EMC had again endorsed the investigation report.

The disciplinary hearing was subsequently arranged for the 15/05/19. During the course of the hearing the Complainant Representative queried the reasonableness of the instruction issued by Mr. Kavanagh based on the Complainants employment contract terms. The Complainant Representative further advised that the disputed instruction was the subject of an adjourned WRC Adjudication hearing. It was further pointed out that the EMC had reached its decision in the absence of being presented with the Complainant's defence. Mr. Keoghan,  the Disciplinary Person appointed by the Respondent, requested copies of these letters as he had not been provided with same. These were subsequently issued to him by email.

Following on from this meeting the Complainant was instructed to attend a meeting on the

04/07/2019 in Trinity College by letter issued by Mr. Kavanagh.  This meeting was attended by Mr. Kavanagh and Mr Brian Nolan. At the outset of the meeting Mr. Kavanagh presented the Complainant with a pre-prepared letter of dismissal to take effect immediately.

The terms of this letter identified that:

Mr. Keoghan had recommended that the appropriate disciplinary sanction should be dismissal

That the dismissal would have immediate effect

That the Complainant could appeal the decision to the General Secretary Mr. Kavanagh

That in the event of an appeal it would be referred to the National Executive Committee

That precise grounds of appeal should be issued within 7 days

That all Union property including car, mobile phone, laptop, access card and keys were to be returned immediately

That the Union had organised a taxi to transport the Complainant back to Limerick

The letter of dismissal was signed by Mr. Kavanagh.

Following this brief meeting the Complainant Representative wrote to Mr. Kavanagh on the 05/07/19 requesting clarification as to the identity of the individual or individuals who had accepted Mr. Keoghan's recommendation.  The Complainant Representative further sought a copy of Mr. Keoghan's recommendation as one had not been provided.

The Complainant Representative queried the appeals procedure which did not conform to the Respondents own rules as set out in rule 117 and the fact that the rules of the Union formed part of his contract terms. The Complainant Representative further advised that the requirement to set out grounds of appeal were not contained in the procedures being utilised as part of the process.

On the 09/07/19 Mr. Kavanagh wrote to the Complainant Representative enclosing a copy of Mr. Keoghan's recommendation, and confirmed that he had made the decision to accept the recommendation thereby confirming that Mr. Kavanagh was the sole decision maker in respect of the Complainant's dismissal. He further outlined that the query regarding rule 117 could be dealt with at appeal stage and noted the Complainant Representatives position regarding the issuing of grounds of appeal.

On the 10/07/2019 the Complainant Representative wrote to Mr. Kavanagh confirming that the Complainant wished to appeal his decision to dismiss the Complainant.  In a follow up letter dated the 12/07/19, having considered the document submitted by Mr. Keoghan the Complainant Representative again wrote to Mr. Kavanagh putting on record a number of observations. These observations outlined that the report had been issued to Mr. Kavanagh (The complainant in the matter under consideration) rather than the commissioning body the EMC. It was further pointed out that Mr. Keoghan confirmed that he was operating under procedures that a) had not been agreed and b) ran contrary to the rules of the Union. The letter challenged Mr. Keoghan's recollection of the meeting in respect the arguments presented, proposals made and documentation being relied on. The Complainant Representative questioned Mr. Keoghan's assertion that the investigation report had been considered by the EMC for a third time to include the letters issued by the Complainant as no notification of same had been given to the Complainant Representative. lt was suggested that best practice would have allowed for the reconvening of the disciplinary hearing to provide such information to the Complainant.

It was further identified that Mr. Keoghan's contention that the Complainant had the opportunity of addressing the EMC through the disciplinary process could not be sustained as this opportunity was not given to the Complainant and his report went directly to Mr. Kavanagh as opposed to the EMC. In the final paragraph the Complainant Representative advised of the absence of opportunity presented by the process in respect of influencing the final decision maker in the Complainant's dismissal.  The content of this letter remained unanswered.

On the 11/072019 Mr. Kavanagh confirmed receipt of the application for appeal and advised he would make the necessary arrangements for same. 

On the 08/08/19 Mr. Kavanagh wrote to the Complainant Representative and confirmed that an appeal hearing was scheduled for the 07/09/19.  In the interim, the Workplace Relations Commission had confirmed a date of hearing for the adjourned Adjudication hearing for the 10/09/19. The Complainant Representative wrote to Mr. Kavanagh on the 19/08/19 seeking a postponement of the appeal until after the adjudication hearing had taken place. By way of letter dated the 27/08/2019 Mr. Kavanagh rejected this application. ln response, the Complainant Representative wrote to Mr. Kavanagh to advise that as the decision maker in the Complainant's dismissal he was now making decisions to frustrate the Complainant's ability to formulate an appeal and that his involvement in denying the application for a postponement was an unwarranted and unreasonable interference in the Complainant's entitlement to fair procedures and due process.

On the morning of the proposed Appeal hearing the Complainant became unexpectedly ill and was unable to travel. The Complainant Representative, through both email and telephone contact with the Respondent, sought an emergency postponement of the appeal hearing. This application was granted and the appeal was subsequently arranged for the 12/10/19. The appeal was heard by the available members of the NEC (the National Executive Council) minus the members of the EMC. On hearing the appeal, the NEC engaged in a protracted consideration of the issues involved. During the course of their deliberations the NEC members on 3 separate occasions requested the presence of the Union's solicitors for the purposes of advice. The content of this advice was not made known to the Complainant or his Representative for consideration or challenge. At the culmination of those deliberations the NEC decided to reject the Complainant's appeal. However, that decision as per the standing orders issued for the appeal hearing said decision had to be endorsed by the full NEC including Mr. Kavanagh, members of the Investigation Committee and members of the EMC who had accepted the Investigation Committee's report. At the end of the process the decision of the NEC was confirmed verbally by Mr. Kavanagh and was subsequently followed by letter dated the 14/10/19 which confirmed the rejection of the Complainant appeal had been endorsed by the full NEC and was signed by Mr. Kavanagh.

During the above process the Complainant had made strenuous efforts to challenge the legitimacy of Mr. Kavanaghs disputed instruction through the offices of the Adjudication Services of the WRC.

The Complainant Representative felt it was of fundamental importance that in considering this case that the Adjudicator be made aware of the extreme efforts made by the employer to frustrate the process of having this case heard by the Adjudication Services and these details and timeline of actions regarding various WRC meetings/correspondence between February 2019 and October 2019 were set out in the Complainants submission. It was the Complainants contention that the Respondent deliberately set out to ensure that the legitimacy of Mr. Kavanaghs instruction could not be scrutinised or challenged until after a dismissal had been affected.

Arguments in relation to the substantive issue

The Complainants terms and conditions of employment as an employee of the Respondent are quite explicit in respect of his work location in the Limerick area. In taking up the position the Complainant was required to establish a residence in the general environs of Limerick and has made his home there. Mr. Kavanagh’s insistence on the Complainant relocating to the Dublin Office and having his work in Limerick assigned to a Dublin based Official was in direct conflict with those conditions of employment. Mr. Kavanagh was equally insistent that under the rules of the Union, he had the authority to compel the Complainant to undertake this relocation. This was clearly a matter of dispute between the parties. There is no mobility clause written into the Complainant's terms of employment and the instruction issued by Mr. Kavanagh had no contractual basis. Disputes between workers and their employer in respect of being required to move to another location are not uncommon and have been the subject of third- party investigation and recommendations / decisions.

The Labour Court in LCR21116 which dealt with a dispute between the Complainant Representative and DHL in respect of the relocation of 2 drivers, concurred with the Unions argument that the employer had not explored all potential solutions before reaching its decision. In that particular case the Court recommended that the parties should engage to conclude a comprehensive agreement as a means of resolving the dispute.

In UDD1934 a case of significant relevance to the Complainant's circumstances, the Labour Court upheld a decision of the Adjudication Service that a worker who had resigned rather than comply with an instruction from his employer to relocate to Dublin from Limerick for a period of 1 week had been the subject of a constructive dismissal.

The EAT in UD 893/2012 held that "In seeking to avail of the geographical mobility clause in the claimant's contract. The respondent company was required to act reasonably and responsibly". In finding in favour of the worker the tribunal determined that the respondent company had not discharged that responsibility.

Similarly, the EAT in RP1040/2013 in finding in favour of the worker concerned, the Tribunal held that "The legal test to be applied is a subjective one. It is not what the employer found reasonable. It is only the employee's subjective view that the Tribunal has to consider."

The Adjudication Service in Adj-0000053 in considering a dispute relating to the unilateral transfer of a nurse to a different ward, held that the decision of the employer in that case amounted to the penalisation of the worker involved and awarded €10,000 in compensation. In coming to a decision in that case the Adjudicator relied heavily on a case from the UK Employment Appeals Tribunal United Bank v Achtar which held "it seems to us that there is a clear distinction between implying a term which negatives a provision which is expressly conferred in a contract and implying a term which controls the exercise of discretion which is expressly conferred in a contract. The first is, of course impermissible. We were not referred to authority for that proposition, but authority is hardly needed for it”

Under the provisions of LCR22030 The Labour Court reversed in its entirety a unilateral decision by an employer to redeploy a worker from one position to another within the business.

In RPD198 The Labour Court in coming to a decision that it was not unreasonable for that worker to refuse redeployment relied heavily on the fact that the employer was not unable to produce evidence of a mobility clause in that workers contract.

The thinking applied by the Industrial Relations bodies in the above cases is supported in law by the decision of Judge Eady QC in the cases of Kellog Brown & Root (UK ) Ltd v Fitton& Ewer where the Judge determined on appeal that the dismissals of both Mr Fitton & Mr Ewer to be unfair despite the existence of a contractual mobility clause in their contracts. Of even more relevance in this case the Judge at paragraph 35 of her judgement determined that "There is no automatic implied right that permits an employer to transfer an employee -at least not beyond a reasonable travelling distance for the employee".

This approach was further supported by the Irish Courts of Appeal in Helen Early V the HSE where the Court held that the temporary reassignment and relocation of Ms Early to be in breach of her contract and therefore unlawful.

These cases would confirm that there exists a clear responsibility on any employer when considering the relocation of a worker that the employer must act reasonably and responsibly and within the constraints of the employee's contractual terms both express and implied. The instruction that was issued by Mr. Kavanagh did not meet any of these criteria. It is obvious that the decision taken by Mr. Kavanagh was as a direct result of the complaints lodged by the Complainant's colleague in the Limerick Office. Notwithstanding the fact that these complaints have not been investigated, and have not either been substantiated, or upheld, Mr. Kavanagh decided to unilaterally remove the Complainant from his appointed office. This view is not just in direct violation of the Complainant's contract terms but is additionally a denial of his fundamental rights to natural justice and fair procedures. In doing so Mr. Kavanagh had suggested that this measure was partly out of concern for the Complainant's mental well- being, while at the same time subjecting him to the disciplinary process. These Complainant maintained that these propositions are mutually exclusive. The Complainant was the official assigned to the Limerick Office and based on his conditions of employment had every right to remain in that position.

Procedural Arguments

The Unfair dismissals Act as amended, S1146 of 2000, and the case law relating to dismissals have established the absolute right of a worker in a dismissals process to the full application of fair procedures and natural justice. This proposition was succinctly identified by High Court justice Feargus M Flood in Frizelle v New Ross Credit Union where he held that in the context of a dismissal

"Put very simply, principles of natural justice must be unequivocally applied”.

The Respondent as a Trade Union would be fully aware of their fundamental responsibility to apply fair procedures and due process. The Complainant maintained that the Respondent failed to discharge that responsibility. In that context, the Adjudicator was requested to consider the following arguments:

Pre-Determined Outcome

In Mr. Kavanaghs letter of the 11/01/19 he clearly confirmed that he would "take whatever action deemed necessary to resolve the issue and ensure you take instruction from the General Secretary ". This intent was further identified in the Respondent submission that had been prepared for the Adjudication hearing of the 04/04/19 where the Union stated *the legal position in this case is that Alan just like any employee is in a master and servant relationship as described in law and are consequently expected to carry out all lawful instruction or suffer the consequence. There can be little ambiguity about the inevitable outcome and consequences for an employee who consistently refuses to carry out a legitimate instruction by his or her manager ".

The above can only be interpreted as a statement of intent to dismiss ever before any investigation or disciplinary process had been engaged in. Allied to these statements of intent are the circumstances whereby the Respondent made every effort to frustrate any process that could challenge the notion that Mr. Kavanaghs instruction was either reasonable or lawful.

The Respondent were not prepared to envisage any obstacle to their clear intention to dismiss the Complainant. Nemo Judex in Causa Sua where this Latin common law phrase translates literally as "No one is judge in his own cause" and was crystallised in common law in the case Frome United Breweries Co v Bath where Britain's highest legal officer the Lord Chancellor held "The maxim that no man is to be the judge in his own cause should be held sacred. And that it is not to be confined to a cause in which he is a party but applies to a cause in which he has an interest.  The Lord Chancellor went on to state "This will be a lesson to all tribunals to take care that in their decisions they are not influenced by their personal interests, but to avoid the appearance of labouring under such influence.”

In considering the influence of Mr. Kavanagh right through-out this process the Adjudicator was requested to consider the following:

Mr. Kavanagh issued an instruction to the Complainant to relocate to Dublin.

The Complainant refused to accept this instruction on the basis of the prevailing circumstances in the Limerick Office and his contractual terms.

The Complainant sought in writing to Mr. Kavanagh the entitlement to address the EMC in respect of the issues involved

Mr. Kavanagh ignored this request

Mr. Kavanagh referred the issues involved to the EMC as a disciplinary matter thereby making him the complainant

While Mr. Kavanagh was absent during the portion of the EMC meeting where the subcommittee's investigation report was adopted as per the minutes of the meeting, he re-joined same for a discussion as to how the Union should proceed.

Mr. Kavanagh did not provide a copy of the investigation report to the Complainant until after the EMC had adopted same.

Mr. Kavanagh appointed the individual charged with convening the disciplinary hearing

Without providing a copy of the disciplinary hearing recommendations to the Complainant Mr. Kavanagh accepted the recommendation

Mr. Kavanagh without reference back to the EMC acted on the recommendation by summoning the Complainant to a meeting where he delivered a pre -prepared letter of dismissal which he had signed

Mr. Kavanagh was party to the decision of the full NEC which endorsed a decision to reject the Complainant appeal

Mr. Kavanagh personally delivered the decision to reject the appeal and issued and signed the letter confirming same.

The Complainant Representative maintained that the above must be considered in the light of the fact that Mr. Kavanagh issued and signed every letter revolving around the process and was directly involved in thwarting any and all attempts by the Complainant to challenge the legitimacy of the original instruction. Mr. Kavanaghs influence is inextricably linked with the process of the Complainant dismissal from start to finish and as a stand- alone issue is enough to determine that the Complainant was unfairly dismissed.

Due process under Rule 117

The Respondent has relied on the rules of the Union as a means of dismissing the Complainant while at the same time denying him the protections afforded by those same rules. It is the Respondents position that as a result of failing to comply with Mr. Kavanaghs instruction was a breach of rule116 of the rule book and justified a decision to dismiss the Complainant.

Rule 117 of the Union rules sets out the process by which the alleged failure by a fulltime official to properly manage or otherwise neglect the affairs of the Union is dealt with. The only body under rule with the authority to address same is the NEC. It is not the General Secretary and it is not the EMC. Mr. Kavanagh by his actions usurped that authority.

In addition, the appeals mechanism available under said rule is not to the NEC but to the full Union membership. Despite bringing these matters to the attention of Mr. Kavanagh, those representations were ignored, and Mr. Kavanagh engaged in a process alien to the Union rules as a means of enforcing his authority as General Secretary.

The Adjudicator was requested to consider the provision of the Unfair Dismissals (Amendment) Act which entitles the Adjudicator to take account of both the actions and omissions of an employer in respect of adherence to such rules governing the process of dismissal.

Additional Procedural deficiencies

It was alleged that the process of investigation, disciplinary hearing and appeal were riddled with procedural deficiencies at each stage

Investigation stage

The content of interviews undertaken by the investigation was not provided to the Complainant for consideration or challenge.

The investigation report was not issued in draft format for consideration, comment or challenge.

The investigation report carries a recommendation for a disciplinary hearing. This is in direct conflict with the views expressed by the High Court in Frizelle v New Ross Credit Union.

The report was issued to the EMC without being provided to the Complainant at the same time

The Report was first considered and adopted by the EMC including members of the Investigation Committee

The Report was first considered and adopted by the EMC in the absence of being copied with the Complainant defence

Members of the EMC were required to again consider the report on 2 further occasions due to procedural irregularities. It is credible to argue that in again accepting the recommendations of the investigation for a second and third time that they had been biased by their previous decisions.

Disciplinary Stage

The letter of invitation to the disciplinary hearing did not outline the disciplinary charge. The letter did not advise of the issue being dealt with as serious misconduct

The letter did not advise that the Complainant's position as an employee was in jeopardy.

The matter was dealt with as serious misconduct despite the fact that the Complainant had not been suspended at any stage. This runs contrary to the position adopted by the Labour Court in Coughlan v DHL. The Court set out a clear understanding of what it considered to be gross misconduct and suggested that it was behaviour of such a nature that prevented an employee for remaining at work for one minute longer.

No consideration was given to a disciplinary sanction short of dismissal

The complainant who commenced the process, completed the process by accepting and implementing a decision to dismiss

The decision was issued in a pre-prepared letter of dismissal by the complainant there by denying the Complainant the opportunity of influencing the ultimate decision maker in his dismissal.

Appeal stage

The appeal was conducted ultra vires to the rules of the Union which form part of the Complainant contract as an employee and as a member of the Union.

The final endorsement of the rejection of the appeal was decided on by the full NEC which included the original complainant, investigators and members of the EMC who had actioned the disciplinary process leading to the Complainant's dismissal.

Remedy Sought

The initial remedy sought was reinstatement however this was modified at the Hearings to compensation.

The Complainant was employed as a Designated Construction Official, based in the Union's Limerick Office for 3½ years. He was primarily responsible for the Construction Industry on the western seaboard from Donegal to Cork following his election and appointment on 11th December 2015 to December 2018.

Before taking up this role, the Complainant was Branch Organiser for the Dublin No. 8 (Electricians) Branch, Youth Officer and member of both the National Executive Council (NEC) and Executive Management Committer (EMC) for a number of years. These facts were laid out by the Complainant in his profile in the January 2016 edition of the Union’s Fusion Magazine distributed to all members.

The Respondent outlined it had lost nearly half of its membership in the downturn. Construction Industry in Dublin was going through an unprecedented boom in late 2018 and early 2019 and as part of a focused organising campaign to recruit new and previous members, the Complainant was requested and subsequently instructed by the General Secretary to work in Dublin for 5 days per week for a 3-month period.  In the discussions that were held with the Complainant, various options were proposed:

A 5-day week in Dublin for 3 months;

A 3-day week in Dublin for 6 months (the Complainant’s suggestion);

Commute between Limerick and Dublin; and

A combination of the above.

In any of the above circumstances and based on the importance placed on the planned recruitment campaign, centred in the Dublin area, Connect was prepared to provide Hotel Accommodation for the Complainant’s temporary stay in Dublin. However, in the event the Complainant steadfastly refused to cooperate with any of the above suggestions.

 The rationale for this assignment was to assist in a Recruitment & Organising Campaign where the bulk of the work was taking place and the Union must provide a service to the membership wherever they are working. The following key membership numbers were provided to justify the Respondent case;

1,600 Total number of members registered in the Union’s Limerick Branch;

1,120(70%) were employed in construction;

   896(80%) were working in the greater Dublin Area.

   480 (30%) of the remaining Limerick Branch membership were dispersed throughout other industrial sectors.

There are a small number of members of the Limerick Branch employed to undertake maintenance duties in Manufacturing Companies (circa 320). The remaining members of the branch are employed in the following sectors, that are represented by other designated Full Time Officials of the Union as follows:

ESB – Electricity Supply

Gas Networks Ireland

Windfarms & Overhead Power Lines

Local Authorities

Irish Cement

Lift & Escalator

HVAC & Refrigeration

The Complainant refused the legitimate instruction to temporarily work in Dublin  citing difficulties in returning to his family home and consequently, hotel accommodation was provided for him in Dublin City for a three-month period.

Over a period of 6-months, the Complainant continually refused to carry out the General Secretary’s instruction. Following an investigation by a subcommittee of the Executive Council, including an intervention by a former President of the Union in an effort to deal with the Complainants concerns, he was dismissed on the 4th July 2019 for gross misconduct, in accordance with agreed procedures, as a result of his continuing refusal to carry out a legitimate instruction.

The Complainant Contract of Employment states:

 Clause 3. In particular you are required to accept and comply with the Rules as set out in Section 8 of the Rules of the Union, (which states inter alia: Rule 116. Full-Time Officials shall be under the control and obey the orders of the General Secretary. They will be subject to direction by the General Secretary and will be delegated duties on a Regional or National basis).

Clause 12.The nature of your duties may be varied by decision of the General Secretary, EMC  

 or NEC.

The Dismissal was unsuccessfully appealed before the National Executive Council of the Union at which the Complainant was represented by SIPTU. He was also afforded professional representation and fair procedures throughout the entire 6-month period.

The Respondent stated that the relationship between the Complainant and the Respondent, as his employer, had irretrievably broken down and the appropriate remedy was dismissal and that the actions of the Respondent were both fair and reasonable and the Respondent denied that an unfair dismissal took place.

BACKGROUND

In 2015 the Full Time Official position in Limerick became vacant.  An analysis of the membership in this Region was carried out by the General Secretary in order to make a business case to the Executive Council that justified the retention of an office in Limerick and the appointment of a FTO, given the recent recession and decline in membership. The Executive Council voted and unanimously accepted the General Secretary's recommendation, which was: Because of the diminishing manufacturing base, of the type that requires traditional maintenance, the only justification for appointing another official based in Limerick, with all of the associated cost, was to discontinue the role of Regional Secretary and to create a new role of a Designated Official. The person elected to this new role will have primary responsibility of recruitment and organising in the Construction Industry down along the western seaboard from Donegal to Cork, spanning Regions 4, 5 and 6, with the title Construction Official (M&E). This person will have a secondary role of attending to the needs of the members of the Limerick No 1 Branch.  This new role was advertised accordingly.                           

The Complainant was a member of the Executive Council at the time and a party to the unanimous decision to re-classify the role and responsibility of a fulltime official to be based in the Limerick office, as outlined above. He made his application to be considered for the post of Construction Official (M&E) to his Dublin No 1 Branch, where he was a Branch Activist and was successful in his application, interview and subsequent election.  He commenced employment in December 2015 in the clear and certain knowledge that the role that he applied for was that of a Construction Official (M&E) and not a Regional Secretary. A signed contract of employment was provided to the Hearing.

The Complainant was a member of the Connect Executive Council on the 25th August 2015 when the potential vacancy for a “Designated Official (Construction) Limerick” was created. This decision to create this role was preceded at the same meeting by a decision to extinguish the role of Regional Secretary. The Complainant was also aware of the purpose of this reclassification, the duties and responsibilities associated with this new role, to which he was appointed and carried out over the preceding number of years.                   

Background to the refusal to carry out a Legitimate Instruction - Leading to Dismissal (AD refers to the Complainant ad PK to the General Secretary).

Quarter 4 2018

The Construction Industry in Dublin was going through an unprecedented boom in late 2018 and as part of a focused organising campaign to recruit new and previous members, the Complainant was requested and subsequently instructed by the General Secretary to work in Dublin for 5 days per week for a 3-month period and the Respondents rationale for this is set put above. This occurred as follows:

14th December 2018

A temporary move to Dublin for a five-day week for three months was first discussed between PK and AD and agreed in principal.

2nd January 2019

The General Secretary wrote to the Complainant stating: “That he was moving him to Dublin for a period of three months”.

8th January 2019

The Complainant replied stating: “I will not be moving to the Dublin Office”.(FIRST REFUSAL)

11th January 2019

The General Secretary wrote stating: “Again, as General Secretary I instruct you to report to Bro Nolan’s office at 9am on the 14th January next to receive instructions from him re. your role in the 2019 construction campaign for the greater Dublin area. This is a legitimate instruction and can in no way be construed as a disciplinary action. Should you again refuse or fail to attend as instructed, I will be left with no option but to take whatever action deemed necessary to resolve the issue and ensure you take instructions from the General Secretary as per rule and as per your contract of employment. As you ae aware the Executive Management Committee is due to meet next Thursday and should you not report to Head Office as instructed, the matter will be referred for their attention. In the interim I am available should you wish to meet with me. For your benefit I have attached rule 116 and a copy of your contract of employment”.

13th January 2019

Correspondence from the Complainant to the General Secretary stating: “I again confirm that I will not be complying with your instruction of me to move to the Dublin Office”. (SECOND REFUSAL)

16th January 2019

The General Secretary wrote again requesting an immediate meeting with the Complainant enclosing a copy of the agreed Grievance Procedures and inviting him to be accompanied by his Shop Steward.

16th January 2019

Meeting between the parties re: Temporary Assignment to Dublin

Management:   Paddy Kavanagh (PK), General Secretary

                             Brian Nolan (BN), Asst. General Secretary

Employee:           the Complainant (AD), Construction Official (M & E)

                               Derek Beegan (DB), FTO and chosen representative.

Both parties welcomed the opportunity to clear the air.

AD said he may have overreacted and tried to crack a nut with a sledgehammer.

AD said he had made a life for himself in Limerick and had no desire to move permanently from Limerick back to Dublin.

PK Stated that nowhere in any correspondence did he say it was a permanent move, it was only to meet the current demand in the construction industry in Dublin.

AD suggested that he would prefer to work a 3-day week for 6 months in Dublin rather that the 5 days per week for 3 months as proposed.

PK welcomed this compromise suggestion by AD and confirmed his acceptance of same.

A further meeting was to be arranged to work out the specifics, accommodation etc.

AD send the following email immediately after the meeting: “As a result of ongoing discussions today I formally withdraw all previous correspondence”:

23rd January 2019

Follow-up meeting re: Temporary Assignment to Dublin

Management:   Paddy Kavanagh (PK), General Secretary

                             Brian Nolan (BN), Asst. General Secretary

Employee:           the Complainant (AD), Construction Official (M & E)

                               Derek Beegan (DB), FTO and chosen representative.

Further discussions were held on AD’s suggestion of 3-days per week over 6 months and considerable progress made. PK & BN to decide how AD’s proposal could be best implemented, that would facilitate both parties e.g. AD continuing to live in Limerick, work in Dublin on the campaign mid-week, source suitable hotel accommodation etc.

25th January 2019

FTO Meeting

It was agreed that BN and AD would work together in preparing a written report on a plan for a recruitment and organising campaign across the country.

At this meeting, inter alia, PK circulated a proposed employee handbook for FTO’s for their review and feedback on suggested improvements or areas requiring negotiation over the next number of months.

A further meeting between the parties in relation to the temporary assignment of AD from Limerick to Dublin was scheduled for 28th January 2019.

28th January 2019

PK at 8.18 a.m. emailed AD explaining that due to a sudden death in BN’s family and the fact that he was in bed with the flu, that it was necessary to defer todays scheduled meeting and would revert shortly with an alternative date.

1st February 2019

AD wrote to PK: “Reinstating all previous correspondence, declaring that internal procedures had failed, stating his intention to refer his dispute to the WRC for Adjudication and trusting that the status quo will remain in the interim pending adjudication”. (THIRD REFUSAL)

4th February 2019

PK wrote to AD Stating that in the light of AD’s correspondence of the 1st February 2019 disregarding previous discussions, AD was instructed one again to report to BN’s Office on 6th February 2019 and offering to assist him with accommodation and requesting that he outline his requirements in this regard.

4th February 2019

AD to PK – stating once again “I will not relocate to the Dublin Office”(FORTH REFUSAL)

7th February 2019

PK to AD – You are again instructed to report to Brian Nolan’s office at 9am, Tuesday 12th February. The correspondence also again attached the Grievance procedure and offered accommodation in Dublin for the three days per week for 6 months duration as proposed by AD.

11th February 2019

AD to PK – I will be remaining in Limerick as per my contract terms. (FIFTH REFUSAL)

Myself and my administrative staff have agreed to undertake some action points to alleviate the situation in the office and repair our relationship going forward.

13th February 2019 – EMC Investigation Committee Established

Following a report from PK about the alleged refusal of AD to carry out a reasonable instruction, the EMC established an Investigation Subcommittee to investigate the matter as per the agreed grievance and disputes procedure and report its findings to a subsequent EMC meeting. It was further agreed to request ICTU to appoint one of its officials to act as note-taker to demonstrate a degree of independence and the assurance of natural justice was paramount.

6th March 2019

Sean Treacy Chair of the EMC Subcommittee wrote to AD – In accordance with the decision of the EMC an Investigating subcommittee has been established under the grievance & disciplinary procedure. All details and the disciplinary policy, the make-up of the Committee (including a repressive from the ICTU), the procedures to be followed, time and date of the hearing and the right of AD to be represented at the hearing were all identified in the correspondence.

20th & 26th March 2019

The investigating Sub-committee met on two occasions, took statements and interviewed a number of witnesses and issued the following recommendation:

“The Investigation Committee recommends that the matter be referred to a disciplinary hearing”. N.B.AD was represented by SIPTU at the Hearing.

12th April 2019

The EMC endorsed the recommendation of the Subcommittee, which was conveyed to AD in correspondence on the 16th April 2020.

15th May 2019

The Disciplinary Hearing proceeded, following a request by SIPTU for a postponement of the original scheduled hearing on 30th April 2020.  The Disciplinary Hearing was conducted by Frank Keoghan, former President of the Union. A summary of his finding and recommendation are as follows:

“Finding: “Alan has refused on a number of different occasions to comply with a request from the General Secretary. I therefore find that he has engaged in serious misconduct.

Recommendation: Having considered all of the evidence and requested any mitigating circumstances to be put forward at the Disciplinary Hearing and also in the absence of any solution being put forward by Alan to resolve the matter, I consider that the ultimate sanction of dismissal is the appropriate sanction in these circumstances.”

4th July 2019

AD was formally dismissed and his employment terminated with immediate effect, he was advised of his right of appeal and the procedure associated with same was issued to him in writing.

7th September 2019

The NEC (circa. 40 people) assembled from the 6 Regions throughout the country to hear AD’s appeal. AD failed to attend.

12th October 2019

The NEC was again assembled to hear AD’s Appeal. Following day-long deliberations, the decision of the NEC was to uphold the dismissal.

The Respondent set out its versions of events at the five third party hearings (4 WRC Adjudication Hearings and 1 Labour Court Hearing) and denied it tried to either frustrate the process or was held accountable for any delay by the Independent Bodies involved in the issue and specially placed emphasis on the Labour Court Hearing of January 20th 2020 where it stated that the Labour Court heard preliminary submissions from both parties, were aware that SIPTU had referred a case to the WRC under Section 8 of the Unfair Dismissals Act 1977,  The Court cautioned SIPTU about attempting to back two horses. That the WRC referral is an employment rights case that could be prejudiced by the LC hearing the appeal. In the circumstances SIPTU agreed to an adjournment of the appeal pending the outcome of the UD Case.

With regard to the allegation that the instruction was based on matters unrelated to the needs of the business in Dublin or Limerick and was in fact a response to a dispute in Limerick, thus indicating that the Respondent acted unreasonably, the Respondent stated that there was no dispute in the Limerick Office. For a period of time there has been interpersonal issues in the Limerick office between the Claimant and the administration person in the office. This was escalated by the Claimant, who alleged a data breach by his administrative assistant. She subsequently alleged a number of alleged shortcomings by the Claimant including an allegation that he had initiated an ongoing campaign to have her removed from her position. Connect initiated a mediation process, which resulted in the hiring of external counsellors for both individuals involved. This initiative was supported by the individuals and their respective trade unions i.e. Connect FTO’s Forum & Mandate). What followed was a decision by both parties to suspend the mediation process to allow for them to resolve any outstanding matters between themselves. It was also agreed that should their own endeavours fail that the mediation process would resume. The Claimant in his submission before this confirms this fact as follows: “It must also be noted that myself and my administrative assistant have agreed to undertake some action points to alleviate the situation in the office and repair our relationship going forward”.

The Respondent stated that In December 2018 Connect took a decision to embark on a temporary 3-month organising campaign in the greater Dublin Area in the new year. In looking to maximise the human resources necessary to do so the Complainant was requested to participate in the campaign citing the majority of Construction members were working in Dublin at the time.

The Complainant who was originally from the greater Dublin Area  alleged accommodation difficulties and consequently he was offered hotel accommodation for the entire period in question, which if nothing else confirms the employers bona fides that the request to assist in the Dublin based recruitment campaign was temporary.

The Complainant contended that once he was subjected to a disciplinary process for disobeying an order, these proceedings should have been halted when he commenced proceedings pursuant to the Industrial Relations Acts regarding the dispute. This despite the fact that, an employer does not have a general duty to stay disciplinary proceedings on foot of an application to the WRC under the Industrial Relations Acts, as borne out by the outcome of the various proceedings cited.

With regard to the various matters raised in respect of the procedures used to discipline the employee the Respondents position was as follows;

 That the disciplinary procedure used was not previously agreed with the employee (a)

Response: The Disciplinary Procedure was updated to conform to Section 4 Parg. 2 of the WRC (LRC) Recommendations to be found in S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 which states that: procedures should be reviewed and updated periodically. This was done in full consultation with the Connect Full-time Officials Forum of which the Claimant was a member. However, it is on record that the Claimant stated that he would not be bound by the collective decision of the Full-time Officials Forum.

That the employee was entitled to be subjected to an entirely different procedure contained within the Union rules (b)

Response: The Claimant stated that Rule 117. “Should any Full-Time Official, in the opinion of the N.E.C., mismanage or neglect the affairs of the Union relating to his/her office ”that this rule is entirely irrelevant as “no mismanage or neglect of the affairs of the Union” is alleged in this case.

This aspect of the Claimants submission was fully ventilated and discarded at the previous part hearing on 20th February 2020.

That the employee was entitled to address the body which made the decision to instigate a disciplinary hearing  (the EMC) (c )

Response: The agreed disciplinary procedures sets out a course of action that both the Employer and the Employee are obliged to follow in order to maintain Natural Justice and Fair Procedures. The assertion made by the Claimant that he was entitled to address the EMC does not form any part of that procedure. However, the Claimant did meet with a sub-committee of the EMC, accompanied by his union representative and had ample opportunity to express his issues at that juncture.

That it was inappropriate for the General Secretary to receive the report of the independent disciplinary officer (d )

Response: The Claimant alleged that the participation of Mr. Frank Keoghan (former General President of the Union) in the disciplinary process, was in some way inappropriate. A different Adjudication Officer involved in the grievance part of this case made a suggestion that the involvement of a “Learned Gentleman” might assist in finding a resolution between the parties, Frank Keoghan was deemed to be that person.  Frank Keoghan served on the Executive Council of the union alongside the Claimant for a number of years and both were regarded as close colleagues. It was on that basis that Frank Keoghan was chosen by the General Secretary to engage in the disciplinary process, in the hope that a resolution could be found at that stage of the disciplinary process. However, this did not materialise as in his findings he held that: “Having considered all of the evidence and requested any mitigating circumstances to be put forward at the Disciplinary Hearing and also in the absence of any solution being put forward by Alan to resolve the matter, I consider that the ultimate sanction of dismissal is the appropriate sanction in these circumstances”. This recommendation was subsequently implemented by Paddy Kavanagh, General Secretary the highest administrative position within Connect Trade Union, with leave to appeal to the Connect National Executive Council, which subsequently took place.

While the Claimant submits that it was inappropriate for the General Secretary to received and gave effect to the recommendation/decision of the Disciplinary Report of Mr. Keoghan, this does not stand up to scrutiny as the procedure adopted complied with the terms of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000  were complied. One other consideration to have regard for is the limited resources of the organisation. In this regard, the comments of the Labour Court in Kerry Foods plc – and – A Worker LCR21278 are relevant, where the Court expresses the view that investigation and disciplinary processes should be conducted with regard to the resources of the organisation.

That the appeal process was flawed as it wasn’t in compliance with the process allowable under the Union rules. ( e)

Response: The matter of how the disciplinary process was dealt with was at all times in full compliance with the internally agreed procedures agreed between the Executive Council of Connect and the Connect Full-Time Officials Forum. These procedures are in fully compliance with the specifications of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.  

The assertion that the procedures in this case ought to have been dealt with under Rule 117, would never have been appropriate and this matter has already been addressed in 2 above.

With regard to the alleged precedents in law the Complainant referred to a number of tribunal and Court decisions. In this regard the Complainant relies on a number of authorities to support his complaint, however when these cases are interrogated it is evident that in all such cases the employee was being permanently transferred, which is not what occurred in this instance case and these references are therefore irrelevant.

The Complainant in this case was being asked to attend to his normal duties in the Construction Industry for 13 weeks from the Dublin instead of the Limerick office, consistent with his contract (and which he has done before) which states: “While the role is based in the Limerick Office, there will be a collaborative approach to co-ordinate construction activity in each region. This would entail the Construction Official working with other FTO’s in their respective Regions from time to time”.

In a number of cases where a permanent transfer of an employee was litigated, in circumstances where no mobility clause existed, the power of an employer to invoke such a transfer was upheld in a number of cases provided the reasons for such a transfer were legitimate and reasonable (including the cases cited by the Complainant in his written submission). The Respondent provided a number of legal precedents or legal response to support their rebuttal of the Complainants legal submissions.

Respondents conclusion

Although it is terminology seldom used by Trade Unions, the legal position in this case is that the Complainant, just like an employee in any other employment, is in a master and servant relationship as described in law and are consequently expected to carry out all lawful instructions or suffer the consequence. There can be little ambiguity about the inevitable outcome and consequences for an employee who consistently refuses to carry out a legitimate instruction by his/her manager. 

It is commonplace for Trade Unions to advise their members to accept instructions from their employer, that does not endanger life or limb and to work under protest while progressing their grievance through the internal grievance procedure (consistent with the Employer/Labour Conference decision that informed the Labour Court on appropriate industrial relations procedures). Despite numerous requests to do so the Complainant refused to utilise the agreed grievance procedure. The authority of the General Secretary of the Respondent bestowed on him, under Rule 116 of the Union's Rules cannot be regarded as anything less than Clear, Direct and Unmistakable.

The Respondent stated that the grievance and disciplinary procedures in place fully complied with SI 146/2000 Industrial Relations Act 1990 (Code of Practice) and that it fulfils properly its employees need for access to fair procedure and natural justice. The Respondent stated it had given huge resources and time to try to resolve this issue but unfortunately despite its best efforts, the Complainant refused to compromise, refused repeatedly lawful and safe instructions of work and made no effort to suggest any remedy, which therefore left the Union with no option but to terminate the employment relationship. In light of the above the Respondent stated it took the only action left open to it and it acted reasonably and appropriate in the circumstances of this case.

Over the period of 6-months, the Complainant continually refused to carry out the General Secretary’s instruction, contrary to his contract of employment and the rules of the Union. Following an investigation by a subcommittee of the Executive Council, a Disciplinary Hearing  by a former President of the Union, at which it was confirmed that the Complainant was unwilling to engage in any resolution of the matter, the Complainant  was dismissed by the General Secretary on the 4th July 2019 arising from a finding of gross misconduct and in accordance with agreed procedures as a result of his continuing refusal to carry out a legitimate instruction.

The dismissal was unsuccessfully appealed before the National Executive Council of the Union at which the Complainant was represented by SIPTU. He was also afforded professional representation and fair procedures throughout the entire 5-month period.

The Complainant was merely requested to work from the Head office in Dublin for a period of 13 weeks to participate in a recruitment campaign in the Construction Industry that was his core responsibility. This is the specific job that the Complainant applied for while he was a member of Connect’s Executive Council about which he had full knowledge about what the job entailed, as he was one of the architects of the role.

The fact that the Union was prepared to pay for hotel accommodation for him for three months and was subsequently willing to accept the Complainants counter proposal of 3 days per week for 6 months, is a clear indication that the request to work in Dublin was purely a temporary measure to attend to an urgent and immediate business need.

As a consequence of the above the relationship between the Complainant and his employer had irretrievably broken down. All trust and confidence in the Complainant had been lost. Thus, the dismissal was both legitimate and reasonable from a substantive and procedural perspective.

The relationship between the Complainant and the Respondent, as his employer, has irretrievably broken down and the appropriate remedy was dismissal. The Respondent concluded by stating that its actions were both fair and reasonable and it denied it unfairly dismissed the Complainant on either the substantive issue or procedural grounds.

The Law.

“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

A number of judgements, including the case law submissions of the Parties,  were considered by the Adjudicator in arriving at my decision. Mainly, the Looney v Looney, UD83/1984 in which the EAT established  the test for consideration as follows: "It is not for the Tribunal to seek to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate or consider whether we in the employer's position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer's action and decision be judged”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her” submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”. The Complainant submissions on case law are dealt with below.

The Complainant was hired by the TEEU who later merged with another Trade Union and formed the Connect Trade Union (the Respondent). No issue was made at the Hearing by either party that the contract did not transfer seamlessly from the TEEU to the Respondent.

It is important, before going into the detail of my Findings, to set out the relevant sections of the employment contract;

The Complainant was hired as the “Designated Official (Construction)and “Based in the Limerick Office“.  

Clause 1 of the Contract required the Complainant to “be a member in good standing of the TEEU and comply with the Rules of the Union”.

Clause 3 states “In particular you are required to accept and comply with the Rules as set out in Section 8 of the Rules of the Union”.  Again, it was accepted that the Respondent Rule Book applied to the Complainant..

Clause 4 stated “Your current base of employment will be the TEEU Regional Office, 15 Anne Street, Limerick and you are required to reside in the greater Limerick area. “

At the end of Section 12 it states “Your duties will include but are not confined to the following; You as an Integral part of the Union, will comply with the rules of the Union and will uphold the ethos and philosophy of the TEEU. “

It then defines a number of areas of responsibility, outside of Branch responsibilities, to include  “the Construction REA and other duties that may be decided by the General Secretary/EMC from time to time.” And “under the Construction REA title “Organise in the Construction Industry and the various disciplines … and liaise with other FTO’s concerning companies in various regions” and under “Co-Ordination Activities” to “Co-ordinate the activity associated with these Industries with the support and assistance of the team of FTO’s throughout all the Regions”.

An addendum to the Contract was signed and accepted on the same day as the main contract. This addendum states “ that in taking up the post as TEEU Designated Official (Construction) in the location assigned for the post which is the Limerick Regional Office, that under no circumstances would you make any claim on the Union associated with any costs or expenses you might incur in having to move from your current residence to the designated location, Limerick” and “You will be expected and accept as part of your conditions to reside in the location designated and will only be allowed claims expenses incurred while working from your designated location, in accordance with allowances as set down…..”

Rule 116 states “Full Time officials shall be under the control and obey the orders of the General Secretary” and “They will be subject to direction by the General Secretary and will be designated duties on a Regional or National basis…..Their duties on a National basis will involve assignment on various National/Industrial Consultative Committees”.

Rule 117 deals with mismanagement or neglect of affairs by a Full Time Official.

Rule 121 states “When on the business of the Union and away from his/her office he/she shall be paid expenses and allowances as laid down by the Executive Council from time to time”.

The internal Union announcement of the post, dated August 27th 2015, stated “the primary role of the Designated official will be to undertake the attached list of Duties & Responsibilities in respect f Regions 4,5 & 6, while serving the needs of the Limerick No 1 Branch membership.” It also stated the role will be “working out of” the Limerick Office. Regions 4, 5 & 6 are mainly, Munster, Connacht and Donegal and do not include Dublin. At the time of the conflict between the parties 1,600 Members were registered in Limerick, of which 70% (1120 approx) were employed in Construction and 896 (80%) were working in the Dublin area. From the announcement referred to above. it would appear to limit the Complainants role to Regions 4,5 & 6 but also to service the needs of the Limerick Members. What could be implied from this announcement is the role requires servicing the needs of Limerick registered Members, wherever they may be but not to undertake a drive for new membership in Dublin. Secondly, but more importantly, this notice does not form any legal contract between the Parties and the core legal requirements of the role are set out in the Contract of Employment and the (relevant) sections of the Rule Book. Therefore, its legal relevance is of little significant value in assessing the complaint.

The Complainant was formally requested by the General Secretary to conduct temporary work for 3 days a week for a maximum of 6 months in the Dublin area. He was also offered other options which included 5 days a week for 3 months or travel from Limerick to Dublin on daily basis (or some suitable mix of these to accommodate his personal circumstances). The Complainants main case is that he was not contractually required to do so and what was requested was  not part of his role,  that moving a Dublin based official to Limerick to replace him made no sense and that it was in effect a disciplinary action to remove him from the Limerick office due to the issue with the Administrative Assistant in the Limerick Office.

The Respondents maintained that it was a legitimate instruction given to the Complainant to work out of Dublin for a period, both per the Union rules and the contract of employment and that they were flexible about the number of days per week the Complainant had to spend in Dublin or whether the Complainant drove up and down every day from his base. The Respondents stated that the vast majority of the Construction Union members were based in the Dublin region at that time, that the Construction industry was experiencing a boom and it was the Complainants role and duty as the person responsible for Construction to  co-ordinate/organise the recruitment of members, nationwide. The Respondent specified the maximum time limit as 6 months. All expenses associated with working in Dublin were to be covered by the Respondent.

The Complainant made out that the request to work in Dublin was both a response to the issue in the office and a disciplinary move. The Respondent denied this completely and set out the reasons why the Complainant was needed in Dublin. The minutes of the meeting in December of the office issues and which was held a month or so before the Respondent sought the Complainant to go to Dublin, does raise some questions if the move was planned more to address the internal dispute rather than a need that transpired afterward. I have considered the argument put forward that the move to Dublin was a disciplinary matter in itself to sort out issues in the Limerick office and while there was evidence of the issue being discussed with the Complainant in December 2018 none of the evidence was so persuasive as to be significant in the evaluation of the situation.

The Complainant, at times, made out that he was the De-facto Regional Secretary for Limerick.  The Union organisation chart showed Mr. Heading as Branch Official for another Branch of the Union in Limerick. The Organisation Chart shows no Branch Secretary role in Limerick, whereas it does in a number of other Regions. Nowhere, in legal or practical terms, was the Complainant appointed to or ever given the role of Regional Secretary Limerick and therefore this claim has no legal relevance in consideration of the issues involved in this Complaint. Indeed, the setting up by the Respondent of the role the Complainant occupied, was because there was no business case for a Regional Secretary in Limerick.  In other argument the Complainant made out that the request to work in Dublin was a permanent one.  None of the evidence substantiates this, or indeed makes sense, given the specific requirement in his contract of employment addendum to reside in Limerick and a permanent move to Dublin could only be on a mutual consent basis.

The Complainant refused to go to Dublin, both on the basis that what was required was not within his job remit but on the basis Limerick was his designated location and he did not need to go to work in Dublin. So, the core employment contractual issue for consideration is had the Respondent the right to ask/demand that the Complainant work outside Limerick in Dublin for 3 days a week for a maximum of 6 months. If so, he was fairly dismissed, if not he was unfairly dismissed, leaving aside procedural issues which I will deal with later.

This dispute is about the interpretation of a contract of employment and prior to arriving a Decision the contract needs to be dissected. There is a legal maxim that the Party who draws up a contract cannot effectively choose later to abide by a term not in the contract. However, what is essential then in the absence of a specific travel/location clause, is there an implied term in the contract that the Parties are bound by. In general, there are four tests to assess if an implied term can be applied to a contract. They are:

The Business Efficiency Test,

The Official Bystander Test,

Custom and Practice Test and

implied by Statute.

The Business Efficiency Test basically is a term implied” to make the contract work”. The official Bystander Test is that the term “is so obvious it goes without saying”.  Custom and Practice and Statute are self-explanatory.

The Contract of Employment drawn up by the Respondent, split the duties into 3 Sections;

Areas of Responsibility (which included Recruitment and Organising and the vast majority of the duties required of the Job)

Branch Responsibility which specified attending to the needs of Members in the Limerick Number 1 Branch

and Regional Activity. 

The above split of duties clearly sets a clear distinction between the duties which are outside Branch and Regional responsibilities.

The contract sets out that “Recruitment and Organising will be imbedded in all of the activities within the areas of responsibility under this Job Description”.  Under the Construction, Electrical Mechanical, Line Workers and Facilities Maintenance REA areas of organising the role states “in the various regions”.  Under Apprentice and Youth Forum it in “each region”.  Under Co-ordinate Apprenticeship recruitment through ETB’s and IT’s its “in their respective regions”. However, under Co-ordination Activities it states “Co-ordinate the activity associated with these Industries with the support and assistance of the FTOs throughout all the Regions.” (Emphasis added). “Throughout all the Regions”by implication, because it was not contained under “Regional Activity section, which if one took the internal notice as a guide referred to Munster, Connacht and Donegal,  must be taken to mean all of the 6 Regions covering Ireland, including Dublin.  Therefore, the Complainant was required to co-ordinate work in Dublin, including recruiting new Construction members specifically as he was the National Construction Official, under this clause of his contract.

It is also relevant to assess the amount of duties contained in the contract of employment in the “round”.  Of the 11 duties specified, only 1 related specifically to the Limerick Branch. This strongly suggests that the role significantly involved duties outside of the Limerick Branch.

The Contract states the role “will be based in the Limerick Office”. Depending on the type of role the word “based” can have different meanings. For example, if a person is hired as the Irish Region Sales Manager based in Limerick, it is clear and unambiguous that they have responsibility for the whole of Ireland and this by implication (or implied term), would involve travel to other areas outside Limerick and necessitate overnight stays on occasion. Likewise, a person with the title, Limerick Sales Manager, Based in Limerick you would expect very little travel outside Limerick except for some meetings/training etc. if the Head Office was elsewhere. In the Complainants contract of employment, he was required to reside in the Limerick area, however this is not a clause that by itself, excludes the need to spend time outside the Limerick area. It is merely a statement of where the person will reside and have their home base. Quite rationally, given the role involved the servicing of the Limerick Members this clause made senses from that perspective.

The Complainants job title was “Designated Official (Construction) Based in the Limerick Office”. No mention of the locations in which the Complainant will be required to work is contained in the contract however it does say the “current base……..will be Limerick”.  It does not say for example “You will be required to work from various locations in Ireland and wherever Members work and to spend whatever time is necessary there to conduct your duties”. If this had been included then the intention of the Parties would have been a clear expressed term of the contract.

The move to Limerick appears to be by mutual agreement as no relocation expenses were paid for the move by the Respondent.  The role clearly involves and defines a National role in the Construction area and not confined to the Limerick region.  The contract of employment also defines that the role is “Based in Limerick” and the Complainant must “reside in Limerick”.  So, there is no ambiguity about those contractual terms.  However, the Complainant was not asked to either change his base of work or to reside elsewhere permanently.  He was required, under the written instruction of the General Secretary, to work in the Dublin region for a period of time, which was confirmed as a maximum of 3 days a week for 6 months.  Following discussions, the Complainant was not required to spend overnight time away from Limerick and could continue to reside in Limerick, with his travel expenses to and from Dublin paid by the Respondent and therefore, effectively, the issue became a refusal by the Complainant to spend 3 or so days a week traveling to and from Dublin.

On the issue of Rule 116, which formed part of the contract of employment, it clearly states “Full Time Officials shall be under the control and obey the orders of the General Secretary”.  This is a clear and unambiguous statement. The only orders which can be reasonable refused by an employee are ones which are either illegal or clearly unsafe.  An employee can have a dispute about a particular order or instruction they are given not being within their contract or role etc., but as most experienced Trade Union Officials will advise, in that dispute circumstance, the order is normally carried out “under protest” until the issue is resolved through negotiation or dispute resolution procedures. Quite why the Complainant refused to carry out the instruction “under protest” until his contract was clarified was never properly explained. It is not for the Adjudicator to surmise why the Complainant did not do this and to a huge degree, now, it is irrelevant, but the “prudent” option for him, especially given the potential consequences for his employment were obvious, was to elect to take this course of action rather than the one he choose. This is merely an observation and has no material bearing on the Decision.

The Respondent offered the Complainant both travel, accommodation and expenses for any time he would have gone to Dublin. It was limited to 3 days a week for a maximum of 6 months. Therefore, the request cannot be seen as unreasonable from a financial viewpoint. Evidence was also provided that the Complainant had undertaken a number of weeks work in Dublin and initially in Sweden. The Complainant also initially agreed to work in Dublin but subsequently withdrew that agreement.

Going back to the Implied Terms Tests, working in the Dublin or other regions passes the Business Efficiency Test. The National or Regional support role cannot be effectively carried out from an office in Limerick. It also passes the Official Bystander Test in that if 10 of the 11 duties specified in the contract of employment related to outside Limerick, its obvious travel to locations is involved.  No mobility clause was in the contract but relocation was not required. Travel to and from a Region had assumed a degree of custom and practice by prior situations as described above. Also evidence of other FTO’s collaborated that their contract can require you to reside one place and the custom and practice is to go to another location for a specific campaign or to temporarily cover for holidays/sickness etc of Colleagues. One Witness stated the were based in Dublin but visited Limerick 10/12 times a year to meet Members in their area of responsibility. Another Witness stated they had contributed to the Company Construction campaign in 2019 for a number of weeks in Dublin. The conclusion is the request passes the Implied Term Custom and Practice Test.

In conclusion, the Respondents position far outweighs the Complainants. I find in favour of the Respondent on the substantive issue that the instruction given to the Complainant was both within the scope of the Complainants contract of employment and it was a reasonable instruction.

The detailed arguments by both Parties regarding the procedural issues involved are set out in the respective summaries of their positions above. I will not repeat them here in detail but attempt to summarise them:

The Complainants grounds that the Dismissal was unfair due to flawed procedures were

That the invitation to the disciplinary hearing did not outline the disciplinary charge, that it was being dealt with as serious misconduct and the Complainants job was in jeopardy

That the dismissal decision was pre-determined

That the Respondent attempted to frustrate the WRC and labour Court processes to get a judgement on the legitimacy of the instruction to move to Dublin

That the General Secretary was the Instigator of the complaint and Judge in his own case

That the Complainants request to present his case to the EMC was denied

That the Complainant did not get a copy of the Investigation Report in advance of the EMC meeting

That the General Secretary inappropriately joined in various meetings and was intrinsically involved at all stages of the procedures and issued the ultimate decision to dismiss the Complainant

That the General Secretary appointed the person to conduct the disciplinary Hearing

That the Complainant was not suspended despite the allegation of gross misconduct

That no other sanctions were considered

That the letter of dismissal was pre-prepared

That Rule 117 was not followed

That the Appeal stage procedure was breached by inclusion of the General Secretary, members of the Investigation Committee and members of the EMC that actioned the dismissal

The Respondents position that fair procedures were followed were:

They had a properly structured Disciplinary procedure which was updated by agreement with the Full Time Officials.

That Rule 117 did not apply in this case as it clearly related to completely other disciplinary circumstances.

That the Complainants right to address the EMC does not form any part of the procedure but the Complainant was given the opportunity anyway.

The disciplinary procedure adopted complied with the terms of S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 and that investigation and disciplinary processes were conducted with regard to the resources of the organisation.

The matter of how the disciplinary process was dealt with was at all times in full compliance with the internally agreed procedures agreed between the Executive Council of Connect and the Connect Full-Time Officials Forum.

I will now set out my Findings on the allegation that the Procedures followed by the Respondent were flawed and as a result make the dismissal, in their own right, unfair. However, prior to doing so it is necessary to set out in summary the procedural events that lead to the Complainants dismissal.

On February 7th 2019 in an email to the Complainant titled ”Grievance Procedure” the General Secretary sent a copy of the TEEU/FTO’s Grievance/Disputes Procedure dated December 9th 2014 to the Complainant stating it was the “agreed “ grievance procedure. The procedures were all on 1 page. This procedure also contained the Disciplinary Procedure and under Clause 5 “Disciplinary Procedure” it states “The union operates, as necessary, a disciplinary procedure that accords with best practice and within the rules of natural justice”. In Clause 6 under the Heading “Best Practice Procedure” it states “All of the above will operate in accordance with the Code of Practice; Grievance and Disciplinary Procedures S.I. 146 of 2000. Industrial Relations Act, 1990”.  The purpose of this email was to “ask yourself to familiarise yourself with it and to use it” to formally raise a serious matter of concern to the Complainant. It is important to state that S.I. 146 of 2000. Industrial Relations Act, 1990 allows an organisation to update its policies to reflect best practice. It was not clear as to when the policy was updated.

On March 6th 2019 the Chair of the Investigating Committee sent an invitation to the Complainant to an Investigation Meeting. This letter attached a different Disciplinary Procedure “the Connect Trade Union Policy relating to Disciplinary Procedures.” This is the Procedure adopted by the Investigation Committee. Nothing really stands or falls on the difference of the two procedures as both aim to apply best practice and natural justice. The Connect Procedure contained 4 pages and set out in great detail the procedures to be followed for investigation, discipline and appeals.  The Investigation was authorised by the EMC and they appointed a sub committee to investigate the issue. With regard to investigations the Connect policy states “ The EMC will then set up a sub committee (The Investigating Committee) to investigate and to establish the facts surrounding the allegation and to recommend whether a Disciplinary Hearing is warranted.” The Investigation Committee “shall complete a Report…..and make a Recommendation to the EMC whether a Disciplinary Hearing shall be held”. It goes on to state “The Disciplinary meeting or hearing should be called as soon as practical thereafter…..The Disciplinary Person shall, having heard all matters, and having heard the Employee, decide whether a disciplinary sanction is appropriate and shall decide on the sanction. The Employee shall be notified of the results of the Disciplinary Meeting in writing as soon as possible thereafter and any sanctions imposed”.

The Investigation Committee recommended the matter be referred to a disciplinary hearing. The Complainant attended a disciplinary meeting on May 11th 2019 and the Disciplinary Person, was the former President of Connect, Mr. Frank Keoghan. On June 28th 2019 the Complainant was invited to an “Outcome of Disciplinary Meeting” on July 4th where he was presented with the letter of dismissal. The appointment of Mr. Keoghan was questioned by the Complainant on the basis he was appointed by the General Secretary. Even if this was the case, the only other alternative open to the Respondent was to appoint the Trustees to the role of Disciplinary Person under the procedure. This may again have been claimed as a conflict of interest. It was alleged that the General Secretary was both “Judge and Jury” in his own complaint and was involved in the disciplinary process all along. The process used by the Respondent designated a former President of Connect to conduct the disciplinary hearing. Because the General Secretary was involved in the dispute he could and was not part of the decision to dismiss. He was absent at the relevant EMC meetings when key decisions on the issue were taken. The General Secretary administered to decision to dismiss taken by another person., the Disciplinary Person. While different evidence emerged from the Hearing as to who made the decision to dismiss i.e. Mr Kavanagh or Mr. Keoghan, the letter from Mr. Keoghan to Mr Kavanagh, dated June 24th 2019 is clear and unambiguous. In that letter it states “The Connect Disciplinary Person shall, having heard all matters, and having heard the Employee, decide whether a disciplinary sanction is appropriate and shall decide on the sanction.” (emphasis added)  It goes on to state “having considered all the evidence…I consider the ultimate sanction of dismissal is the appropriate sanction in these circumstances”.

Mr. Keoghan gave evidence to the Hearing of his experience and involvement in the process.  In evidence Mr. Keoghan advised he knew Alan for a number of years, that he had potential for promotion and it gave him no comfort to arrive at the decision he made. He also advised that he was not an employee of Connect, that the General Secretary had not sought to influence him in any way and he was a former Member of the EAT.  This correspondence and the Connect policy does not support the claim that Mr. Kavanagh was both “Judge and Jury” in his own complaint. The Adjudicator did not find anything in Mr. Keoghan’s evidence to suggest a bias and he appeared to independently evaluate the issues involved. Mr.Keoghan was asked to conduct the process by the General Secretary but his appointment was ratified by the EMC.

With regard to the issue of the General Secretary’s involvement in correspondence I see no issue with this as this is what was defined in the Disciplinary Procedure and if the Respondent had deviated from that it may be accused of breaching procedure.

The Complainant had refused five times to take up the assignment in Dublin. He initiated external dispute resolution procedures on the issue. Five meetings were held with the external dispute resolution bodies.  Both the option of working under protest and delaying the decision to dismiss were available to the respective Parties and were not chosen as a way of resolving the dispute without recourse to dismissal. It is not possible, or maybe indeed relevant to the Unfair Dismissal decision, to make a finding as to why the process took so long and why it had not concluded prior to the decision to dismiss the Complainant. The Complainant (as per Conway V HSE High Court 2016 IEHC 73) submitted by the Complainant in support of his case, had the option of seeking to put a High Court stay on any investigation of disciplinary proceedings pending completion of the external dispute resolution processes. He did not choose to do so. It has to be taken into account that the Complainant was  Trade Union Official and by implication, had a much greater knowledge of employment rights, procedures and laws than a “lay person”.

With regard to other sanctions being considered the issue clearly was of a significant nature and possibly no other sanctions were considered but this does not make the Decision incorrect. With regard to no suspension being invoked, I do not deem it a critical factor in this decision that the Complainant was not suspended as the Parties were engaged in significant communications at the time on a variety of issues and no malfeasance was attributed to the Complainant to justify a suspension and the amount of time between the finding of refusing to do the instruction and the dismissal was about a month.

The Complainant was not advised in the invitation letter to the Disciplinary Outcome meeting that his position was at risk. However, given all the prior communications and warnings and especially given the Complainants job, he must have been under no doubt about where the disciplinary procedure could lead and had been advised clearly by the Investigation Committee, as part of their investigation both the nature of the issue to be examined and that his job was at risk.

Rule 117 does not play a factor in the consideration of the issue as it deals with mismanagement or neglect of affairs by a Full Time Official and not the issue of misconduct as alleged in this case. The process for dealing with issues arising under this Rule is not relevant to this assessment of this complaint. Section 15 (Rules 265 to 283) of the Union Rule Book is called Disciplinary/Appeal Procedure but this relates to issues to do with either Members of FTO’s that breach operating policies of the Union.

The procedural issues concerning the Appeal Hearing were not discussed in any detail at the Hearings. The Appeal Hearing was held by the NEC on October 12th 2019 and the Complainants dismissal was upheld.  The NEC (effectively described by the Respondent as the Board of Directors) consists of National President, the General Secretary, 3 Trustees and 36 “Lay” Members ).

No sufficient evidence was provided to suggest that this should be a major factor in my considerations.   

The Complainant put forward the following Case Law to support his case;

R V Sussex Justices, ex parte Mc Carthy UK High Court of Justice (1924) 1 KB256 (1923) All ER Rep 233

Goulding Chemicals Ltd V Bolger Supreme Court 1977 WJSC-SC-673

Khan V HSE High Court 2008 IEHC (2009) E.L.R. 178

Conway V HSE High Court 2016 IEHC 73

Doyle V Bridgestone Ireland Ltd EAT UD1434/2010

Heffernan V Pfizer Nutritionals Ireland Ltd EAT UD2439/2011

DHL V Roche EAT UD833/2015

The Respondent submitted its replies to same contesting the relevance or similarity to the instant case.

In R V Sussex Justices, ex parte Mc Carthy UK High Court of Justice (1924) 1 KB256 (1923) All ER Rep 233a Judges Court Clerk a Court Clerk was present when the Judges made a decision in chamber when a decision was made by the Judges and he had a personal interest in other proceedings relating to the Defendant. This decision was quashed but does not have relevance to the instant case as Mr. Kavanagh was not present at the key EMC or Decision to dismiss meetings. I can see no relevance in Goulding Chemicals Ltd V Bolger Supreme Court 1977 WJSC-SC-673 to the instant case. In Khan V HSE High Court 2008 IEHC (2009) E.L.R. 178 one Doctor made safety allegations against another and was present at the Investigation Meeting and remained with the Investigating Member’s during a break in proceedings. This was alleged to be a breach of fair procedures and that the Complaining Doctor had the opportunity to influence the Investigating Committee. This again is not relevant to the instant case as no similar circumstances apply. In Conway V HSE High Court 2016 IEHC 73 the Complainant got a stay on an investigation as they had been advised that the an Investigation would be conducted by person(s) agreed between the Parties. No such offer or requirement existed in the Respondents Investigation Policy. While this may be prudent no requirement exists. In Doyle V Bridgestone Ireland Ltd EAT UD1434/2010 a dismissal was found unfair due to “the accusatory turned investigator turns into decision maker and ultimately the sanction giver”.  This joined up roles do not apply in this case as outlined above. In Heffernan V Pfizer Nutritionals Ireland Ltd EAT UD2439/2011 the EAT decided that a proper investigation was not completed and awarded the Complainant 20,000 Euros for unfair dismissal. Finally, in DHL V Roche EAT UD833/2015 found a dismissal unfair when the same person conducted the investigation and the Disciplinary Hearing. In the instant case the Investigation was conducted by a 3 person group (not including Mr. Keoghan) and the disciplinary hearing was conducted by Mr. Keoghan.

 Overall Findings regarding the Procedures used to dismiss

I have given significant time and consideration to the Procedural issues involved. Certainly, there were some procedural deficiencies by the Respondent, notably in the Disciplinary Invitation letters by not specifying the issue for investigation and that dismissal could be an outcome (but were stated in the Investigation letters and the Investigation Report outlining all the issues was attached with the Disciplinary meeting letters) and the submission of the issue 3 times to the EMC due to procedural issues.   However, these have to been seen in the context, purpose and structure of the Organisation and the Disciplinary process. While these deficiencies exist, the question is are they so persuasive in favour of the Complainant that would justify the overturning of my finding in favour of the Respondent of having substantial grounds to dismiss.  The Adjudicators overall assessment is that the procedures adopted were fair and reasonable in line with the Respondents structures and Policies and any deficiencies were not so significant (or were addressed in other ways) to justify overturning the decision on the substantive issue.

Having considered both Parties submissions and the significant evidence presented to the Hearings,  I find in favour of the Respondent on both the substantive  and procedural issues and the Respondent had substantial grounds for dismissing the Complainant on the basis of 6.1 (b) of the Act “the  conduct of the Employee”.  I find that the Complainant was not unfairly dismissed.

Unfair Dismissal