Complainant

Respondent

Parties

Barry  Halpin

Iarnrod Eireann/Irish Rail

Complainant

Respondent

Representatives

Vivian Cullen  of SIPTU Trade Union

Mr Costello, Solicitor of Parent Company, Solicitor’s Office, supported by Senior Railway Managers.

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-00060121-001

20/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060121-002

20/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060374-001

04/12/2023

1:          General Information.

The issues in contention concern the alleged Unfair Dismissal of the Complainant by the Railway Company. The grounds cited were related to incidents arising from the stopping, by the Gardai, of his Company Vehicle on or about the 3rd June 2020. Additional complaints were attached under the Minimum Notice Act,1973 and the Payment of Wages Act,1991.

The rate of pay was stated to have been € 900 Gross per week for a 39 Hour week.

The employment commenced on the 1st July 1998 and ended on the 16th June 2923.

2:       Previous Investigation by Iarnrod Eireann Internal Grievance and Disciplinary Tribunal.

It is important to note that the entire case was exhaustively investigated and reviewed by the Internal Grievance and Disciplinary Tribunal, chaired by Mr Kevin Duffy. In his Report the Chairman determined that the sanction of dismissal be replaced by a Demotion to a lesser Grade and that the period between the Dismissal and the resumption of Work be regarded as a non-recoverable loss of income to the Complainant.

The Respondent Employer stated that they were invoking their rights, after consideration at the most Senior Management Levels, on Grounds of Safety, as set out in the Grievance and Disciplinary Agreement, to not accept the Chairman’s findings. Dismissal followed this decision.

3:       Period of Reflection by Parties suggested by Adjudication Officer between initial Hearing on the 5th March 2024 and second Hearing on the 3rd May 2024.

A Period of Reflection for both Parties and possible further local discussions was allowed by the Adjudication Officer at the adjournment of the first Hearing on the 5th March 2024.

On the resumption of the Hearing on the 3rd May 2024 it was established that no progress had been made and a full formal Adjudication Decision was required.

Accordingly, the Hearing reconvened and in effect focused on the applicability or otherwise of the Chairman’s Report from the Grievance and Disciplinary Agreement

1:1        CA -00060121-001 – Unfair Dismissal complaint

The Complainant was represented by Mr V Cullen of SIPTU. An Oral testimony was given supported by an extensive written Submission. Significant cross examination of Respondent witness took place.

The actual facts of the case were as set out in the pleadings to the Disciplinary Tribunal. The Complainant had been stopped by the Gardai and the Company Van, he was in charge of, was found to contain an amount of illegal Drugs. The Complainant was prosecuted at the District Court but with a very minimal penalty imposed.

It was important to note that the Complainant had satisfactorily passed all Employer Drugs tests. He was not a “user” but had allowed a very difficult gambling addiction to allow unscrupulous others to intimidate him into allowing drugs to be transported in his Company vehicle.

Mr Cullen for the Complainant pointed to what he alleged were numerous shortcomings in the Respondent Management Employment case on the grounds of Natural Justice and Fair Procedures.  Significant case law was cited leading from Mr Justice Flood’s landmark Frizell v New Ross Credit Union case High Court 1997 IEHC where it was stated that “Put very simply principles of Natural justice must be unequivocally applied”. 

The Respondent fell down badly on these issues. The outcome of the internal Disciplinary Appeals process before Mr Duffy strongly reflected this.

The Unfair Dismissal decision should be set aside, and the Complainant allowed back to work with all loss of income restored.

1:2       CA-00060121-002 - Minimum Notice.

As the Complainant had been dismissed for, in effect Gross Misconduct, no Minimum Notice was paid.  The Complainant sought to have, depending on the outcome of Unfair Dismissal complaint, his Minimum notice paid.

1:3      CA- 00060121-003 – Payment of wages

The Complainant was on unpaid suspension for considerable periods and is seeking pay restoration for these periods.

2:1       CA -00060121-001 – Unfair Dismissal complaint

The Respondent was represented by Mr Costello, Solicitor and by Mr Brosnan, Industrial Relations Manager. Oral Testimonies were given supported by a lengthy Written Submission.

The facts of the case were not disputed. The outcome of the Disciplinary and Appeal Procedures chaired by Mr Duffy was questioned on the possible Safety implications. The Respondents felt that the Complainant’s Natural Justice and Procedural Arguments were misplaced.

However, the key Respondent argument, put most strongly by Mr Brosnan, was that the Safety implications for the Respondent in accepting the Internal Appeal findings were so severe that they had had no option but to refuse to accept them. The Complainant was engaged on Permant Way works. The safety of all passengers had to be a paramount consideration for a Railway Company.

It was accepted that refusing to accept an Internal Appeal finding was almost unprecedented and had only been decided at the highest levels in the Organisation. The Grievance and Disciplinary procedures were an integral part of the Railway Industrial Relations structure. The Respondents did not lightly take the course of action they did.

The Railway is governed by the Railway Safety Act of 2005. The maintenance of safety for the Travelling public is a paramount goal. The Complainant was found in possession of a significant amount of illegal drugs in his van and was convicted in the District Court.  This could never be forgotten about.

The sentence in the Procedures regarding.

“the outcome of the machinery creates a serious problem for the company, on the grounds of Safety, then an immediate meeting shall take place between the Company and the union concerned with a view to satisfactorily resolving the safety issue”.

was there for this very reason.

Local agreement had not been possible, and it was now atAdjudication. The Respondent Representative was extremely direct at the oral Hearing on day Two, in stating that there was no possibility of the Railway ever reemploying the Complainant. Safety considerations were paramount and could not be set aside or overlooked.

Cross examinations between the Parties did not add much to the fundamental points set out.

3:1       General Introduction

The Respondent Employer is one of the largest in the State. The Grievance and Disciplinary Policies and Procedures Agreement was the product of extensive negotiation between multiple Unions and Management. Since introduction in the early 1990s it has served all Parties well. The status of the Procedures is reflected in the fact that the Appeal Chairman is a most respected and esteemed retired Chairman of the Labour Court.

His Report in this case is forensically detailed and weightingly considered – it runs to 9 close typed A4 Pages.

The decision of the Railway Management not to accept the Chairman’s findings was only taken after very serious consideration.  The possible Industrial relations fall out remains to be seen.

The Management cited the overwhelming Transport Safety consideration they bear and the Legal precedents both in Ireland (with examples from UK Rail Inquiries) in the event of a Rail accident. In their view they had to take a most serious step in rejecting the Chairman’s findings, but it was driven by overwhelming Safety considerations.

The Complainant was convicted in the District Court on two counts arising from the Misuse of Drugs Act,1977/84. This could never be ignored or forgotten about.

The relevant section in the Procedures, which appears to have in some way foreseen this type of scenario, allows for discussion between the Parties “with a view to satisfactorily resolving the safety issue”. The period of “Reflection” allowed by the Adjudication Officer from the 5th March to the 3rd of May 2024 did not appear to have had a positive outcome.

The Respondent Managers were most adamant that the Complainant could never come back to the Railway. On questioning from the Adjudicator about the possibility of non-safety related jobs, Office Security, Porters etc it was stated that such positions, which may have been availed of in the past in these types of circumstances, no longer existed. It was noted by the Adjudicator that the Complainant was not a Drug User but had been a pawn used by other very unscrupulous persons.

It was clear that the prospect of extended Respondent Legal Appeals and references to Higher courts were quite in prospect to ensure the non re employment of the Complainant. The negative Industrial relations fall outs from this scenario have to be seen as a possibility. The issue of the Respondent Drugs and Alcohol policy in the light of Respondent negative approach to the Grievance and Disciplinary Tribunal finding is also a consideration.

Regrettably and bearing in mind Legal cautions regarding Tribunals or Adjudicators seeking to replace Employment decision makers It was left to the Adjudicator, following the failure of the Period of Reflection suggested to the Parties, to come up with a “Judgment of Solomon” in this case.

3:2        CA -00060121-001 – Unfair Dismissal complaint

Section 7 of the Unfair Dismissal Act now requires consideration.

Redress for unfair dismissal.

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following  the adjudication officer or the Labour Cour, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

Re Instatement and Re Engagement are not possible. Effectively the active agreement of the Employer is required if either of these options is going to have any prospect of success. This is clearly not the case here, not from any malice but from the Safety Considerations.

Accordingly, Section 7:1(c) is the only option remaining particularly following the lack of a positive outcome from the Period of Reflection suggested to both Parties.

Accordingly, the Report of the Chairman, Mr Duffy of the 24th April 2023, is endorsed save that the Redress is altered from Re Engagement to Financial Compensation.

It was noted that the Complainant was not a Drug user.

The sum of € 40,000 being approximately 44 week’s pay is awarded to the Complainant under CA -00060121-001.

This payment to be seen by both sides as a pragmatic “closure” of the case.

3:3       CA-00060121-002 - Minimum Notice.

As the Dismissal was found to be Unfair 8 weeks’ pay (€900 x 8 = € 7,200) Minimum Notice is awarded to the Complainant.

3:4       CA-00060121-003 – Payment of wages

The comment of the Appeal Chairman is noted here. No sustainable case was established at the Hearing to justify a Payment of Wages award. No Award is made.

Unfair Dismissal, Minimum Notice, Payment of Wages, Internal Appeals Tribunal.