INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
RADIO TELEF�S �IREANN
- AND -
(REPRESENTED BY SMYTH O'BRIEN HEGARTY)
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr Rorke
1. Appeal against Rights Commissioner's Recommendation No 870/97.
2. The appeal concerns a chargehand stagehand who was involved in an incident whereby his supervisor was subjected to a serious verbal assault, on the 23rd of May, 1996. Arising from the incident, which was the subject of a disciplinary hearing (and subsequent appeal), the worker was advised by letter dated October 1, 1996 that he was
(1) to be demoted from Chargehand Stagehand to basic Stagehand grade, with consequent salary adjustment, for 1 year,
(2) to be suspended for 6 weeks without pay,
(3) to be placed on probation for 12 months from the 31st of March, 1997,
(4) to have a final written warning placed on his file.
Following local discussions, the matter was raised with the Labour Relations Commission and a conciliation conference took place at which both parties agreed to the dispute being referred to a Rights Commissioner for investigation. The Rights Commissioner found that while an incident of a serious nature had taken place, aspects of the disciplinary process which followed , e.g., the inclusion of individuals who had taken part in the earlier stages of the process in subsequent Disciplinary and Appeals Boards. He regarded it as significant that, following the investigation, the worker made an unreserved apology to his supervisor and gave an assurance about his future conduct. It was the Rights Commissioner's understanding, from Company evidence, that had the apology been made in the 24 hours after the incident, the matter could have ended there, but that this was not made clear to the worker.
On the 31st of March, 1998, the Rights Commissioner recommended that the penalty imposed be amended, as follows:-
(i) The period of demotion to be reduced by the restoration of the worker to the grade of Chargehand with effect from the 1st of August, 1997,
(ii) The period of suspension without pay to be reduced to one week,
(iii) Should service, in the 12-month period up to the 31st of March, 1998 have been satisfactory, the final written warning to be replaced, with effect from the 1st of April, 1998, by a written warning, to stand until the 31st of December, 1998.
The Rights Commissioner's Recommendation was appealed by the Company to the Labour Court, on the 21st of April, 1998, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 5th of June, 1998.
3. 1. The incident which took place was very serious and was examined thoroughly, with great care and patience, and in line with the Company's Disciplinary and related procedures, and the code of best practice, as advised by the Labour Relations Commission.
2. In imposing sanctions, the Disciplinary Board was mindful of a previous incident which had taken place involving the worker (details supplied to the Court).
3. This was a dismissal offence under the Company's Code and in any other employment the worker probably would have been dismissed immediately.
4. By reducing the penalties imposed, the Rights Commissioner has, to a large extent, absolved the worker of any serious wrongdoing. This has placed the Company in an impossible position insofar as its attempts to protect staff from attack has been minimised.
5. The worker was afforded appropriate and adequate representation and the Company has demonstrated that he sought to thwart the investigation at each stage, causing long delays and undue stress to those involved.
6. Had an apology been made at the outset, it might have had some impact on the Disciplinary Board's deliberations. The apology given almost 2 years after the event was too late and did nothing to reduce the hurt and anxiety caused to the supervisor.
4. 1. Fair procedures were not applied at all stages of the investigation/adjudication process. Despite the fact that the worker faced possible dismissal, he was denied legal representation. He was not informed of the exact nature of allegations being made against him, and by whom they were made nor was he given a list of witnesses summoned to appear before the inquiry. The Company also failed to provide a list of statements taken in relation to the matter and also a copy of notes taken by management at a meeting on the day following the incident.
2. A senior member of management was involved in the investigation of the incident and, subsequently, sat on the Disciplinary Board which adjudicated on the allegations. The same person also gave a statement as part of the investigation.
3. The statements taken during the course of the investigation were also furnished to the Manager, TV productions, who subsequently sat on the Appeals Board.
4. Throughout this matter, the Company has relied on the Code of Practice for Disciplinary Procedures, Statutory Instrument No 117 of 1996 to justify its decision to deny the worker legal representation. At the same time it blatantly ignored the general principles set out in this code in relation to disciplinary procedures (details supplied to the Court).
5. At no stage did the Company indicate to the worker that, if he gave an apology, no further action would be taken. If the worker had been given such an option he would have availed himself of it.
6. The Rights Commissioner's Recommendation should be upheld as fair and proper procedures were not applied and the penalty imposed was disproportionate to the breach of discipline.
The Court views the incident that took place as most serious. However, having considered the written and oral submissions made by the parties, the Court agrees with the Rights Commissioner's remarks in relation to the "question of fair procedures". This is particularly relevant in relation to statements submitted to the Disciplinary Board not being made available to the employee and to the fact that the line manager responsible for the area bringing the charges was also on the disciplinary panel investigating the case.
In the circumstances, the Court accepts the Rights Commissioner's arguments for amending the penalty but believes that 1 week's suspension without pay for such a serious offence is inappropriate.
The Court, therefore, upholds the Rights Commissioner's Recommendation, with the following amendment:-
the period of suspension without pay to be increased from 1 week to 3 weeks.
The Court so decides.
Signed on behalf of the Labour Court
30th June, 1998______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.