LCR23002

PARTIES:

DIVISION:

SUBJECT:

Dismissal of the worker arising from alleged misconduct.

BACKGROUND:

The Worker referred this trade dispute to the Labour Court on 15 March 2024 in accordance with Section 20 (1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court’s Recommendation. A Labour Court hearing took place on 21 June 2024.

RECOMMENDATION:

The Court has given very careful consideration to the written submissions of the parties and the oral submission of the party who made the referral to the Court under Section 20(1) of the Industrial Relations Act, 1969.

The employer in the matter, having regard to the statute and the Rules of the Court drawn up under statute, sought the consent of the Court in advance of its hearing to be represented at the hearing by Counsel and Solicitor. The Court consented to the employer’s appearance before the Court by Counsel and Solicitor but, in so doing, emphasised that no matter of law lay before the Court in the referral by the worker which gave rise to the hearing of the Court.

The employer also advised that it would attend the hearing accompanied by a stenographer. The Court made clear that no stenographer would be admitted to the Court room where a hearing under the Industrial Relations act was taking place. The employer responded to that decision by asserting that it would consider seeking a judicial review of that decision.

In setting out the fact that the High Court has consistently recognised that no aspect of the conduct of the statutory functions of the Labour Court in matters referred under Section 20 of the 1969 Act is justiciable, the Court acknowledged the assertion of the employer but made clear that any such course was a matter for the employer and not the Court.

The Court noted that the background to the matter before the Court was an initial referral made by the worker to the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969. The employer, as was its  right under the Act, objected to that referral and the matter did not proceed as a result. The worker subsequently made the within referral to the Court.

Both parties to the within trade dispute did, as requested by the Court, provide written submissions in advance. It was a matter of some surprise to the Court that the written submission of the legal representatives of the employer was a submission relating to a referral under section 13 of the Act of 1969 and not the referral actually before the Court which was a unilateral referral by the worker under section 20 of the same Act. Nevertheless, the Court was satisfied that the submission of the employer could reasonably be taken to be an expression of the employer’s perspective on the trade dispute at issue before the Court.

On the day before the hearing of the Court, the employer’s legal representatives advised the Court that the employer would not, after all, be attending the hearing. The basis for the decision not to attend appeared to be the Court’s refusal to allow stenography at the industrial relations hearing.

Having regard to the statutory provisions set out at Section 20 of the Act of 1969, the hearing of the Court proceeded in the absence of the employer.

It is common case that the worker was dismissed by the employer. It is also common case that the procedures laid down in the employment, which included an investigation, disciplinary hearing and appeal, were followed in the matter of alleged misconduct by the worker. The worker does not appear to express dissatisfaction with the procedure employed by the employer but appears to dispute the conclusions reached at each stage of the procedure.

The function of the Court in the within matter is to express an opinion, based on the merits of the dispute, as to how the trade dispute might be resolved. It is not the function of the Court to review or ‘second guess’ the conclusions reached at the various stages of the disciplinary procedure.

The Court is conscious of the degree of concern and dissatisfaction expressed by the worker. The Court concludes that, in all of the circumstances, the trade dispute can best be resolved by a goodwill gesture towards him, made without prejudice to the position of either party. That gesture should be in the form of an ex-gratia payment in full and final settlement of the trade dispute.

The Court therefore recommends that the employer should, without prejudice to its position, make a goodwill payment of €3,000 to the worker in full and final settlement of the trade dispute.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
CN	______________________
1st July 2024	Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Cathal Nerney, Court Secretary.