INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr Rorke
2. The dispute concerns a worker who was employed by the Company for eleven years. The worker was suspended with pay on the 27th of November, 1998, following an allegation by a female crew member of catering staff (also a SIPTU member), that she was raped on board the Company's vessel by a male crew member on the 18th of November, 1998. She alleged that the crew member involved was the worker concerned, and that he issued threats against her and her friends. The complainant also alleged that he sexually harassed her on two previous occasions. The worker denied the allegations. The Company then initiated an investigation of the complaint which was conducted over a period of approximately five months. The worker was dismissed on the 16th of April, 1999. On the 20th of April, 1999, the Union lodged an appeal, in accordance with internal procedures, but the appeal failed and the Company confirmed its decision to dismiss the worker.
The Union claimed that the dismissal was unfair and that the worker was not afforded the basic principles of natural justice. The Company rejected the claim stating that it conducted a lengthy and thorough investigation and afforded the worker full and fair procedures.
The dispute was referred to the Labour Relations Commission. Conciliation conferences were held on the 24th of August and 13th of September, 1999. No agreement was reached. The
dispute was referred to the Labour Court by the Labour Relations Commission on the 14th September, 1999. A Court hearing was held on the 4th of October, 1999. The hearing was adjourned to enable the Court to consider the written and oral submissions made. Subsequently, further hearings were held on the 22nd, and 26th of November, 1999, 14th, and 20th of December, 1999 (Kilkenny, adjourned) and 12th of January , 2000 (Kilkenny). At these hearings (with the exception of the adjournment of the 20th of December, 1999) the Court heard evidence under oath from a significant number of workers who had been interviewed by the Company during its investigation.
3. 1. The Company continually refused Union demands for access to all information on which the Company based its decision to dismiss the worker. The Company purposely misled the Union into believing that there were in existence more than thirty statements which Management relied upon to justify the dismissal of the worker. It has now been confirmed that no such statements exist. Furthermore, it was also confirmed at the Labour Relations Commission meeting in September, 1999, that the Company was only in possession of unsigned minutes of interviews, taken during the course of its investigation. The Union demanded access to them so as to afford the worker the right to rebut them. Despite a commitment from the Company to release these documents to the Union, it failed to do so before the Court hearings.
2. The worker did participate fully in the internal procedures and answered all relevant questions put to him. There were thirteen questions put to him in writing many of which were "irrelevant". The others he answered fully and to the best of his ability. This course of action was taken on legal advice.
3. The worker was interviewed prior to his receiving the statement of the other party in this dispute. During this interview the Company asked him to account for his movements on the a.m. of the 18th of November. The worker fully accounted for his whereabouts during the time in question. The Company and the other party then changed the time of the alleged incident from a.m. to p.m. This is a very significant event in this dismissal. However, the worker continued his co-operation with the inquiry by confirming his whereabouts in the p.m.
4. During the period of the Company's investigation the worker clearly denied involvement in the alleged incident of the 18th of November, 1998 and categorically denied the two occasions of alleged sexual harassment of June, 1998 and August/September 1998. The Company has confirmed that there was no direct evidence against the worker, no eyewitness or forced entry to the cabin. The worker was not definitely identified by the complainant, rather she alludes to the sound of his voice and his stature and outline. The worker fully co-operated with the civil authorities and was not charged with any offence.
5. The internal appeals procedure is flawed. It provides that a worker appeals a decision of one branch of management to another, with the Company's position in almost 100% of cases upheld. When the Union appealed the worker's case in June, 1999, it made a comprehensive appeal on his behalf, but the appeal with a supplementary statement from a co-worker fell on deaf ears. The outcome was a single line letter to the worker confirming the Company's decision, and not copied to the Union who represented him. The procedure should be replaced by a just and fair one.
6. The dismissal has damaged the worker and his family financially, and has also damaged his standing in the community. The Union seeks his re-instatement with full compensation for loss of earnings since 16th of April, 1999.
4. 1. The charges against the worker were clearly outlined to him in a letter dated 18th of December, 1998, and further detail of the charges was provided on the 6th of January, 1999, together with the identification of areas of possible questioning. At this stage, the Union indicated that together with the worker it would not participate in the investigation pending developments in the legal area. The Company stated that it had to conduct its own investigation which was totally independent of any legal case that may or may not be pursued. It proved extremely difficult to conclude the investigation due to the worker's reluctance to attend hearings, his refusal to answer questions at these meetings and again when the questions were put in writing. It is abundantly clear from the correspondence exactly what the charges were, and the areas on which the worker needed to respond.
2. The response was negligible and the Company contends that there was a deliberate attempt to frustrate the investigation. In correspondence dated 24th of March, 1999 and 9th of April, 1999, the Company warned that it would have to make a decision based on the information available and confirmed the seriousness of the situation. In spite of this no additional co-operation was received. The Company was left with no option but to conclude the investigation and its decision was communicated in writing on the 16th of April, 1999 almost five months after the investigation began.
3. Throughout the investigation the Company had serious concerns about the safety of all concerned due to a number of factors, the nature of the alleged offence, the serious alleged threats which formed part of the alleged rape, numerous comments from several people suggesting that this should be "dealt with" on the ship and previous instances involving violence. The nature of life at sea where crew live and sleep on board for seven days and nights at a time means that the environment is more susceptible to intimidation. The Company's concern has not inhibited in any way the worker's ability to defend himself against all charges. In all elements of the charges there has been a total refusal of response or complete rejection of the allegation.
4. The decision to dismiss was taken after long and very careful consideration of all the evidence. It was communicated in detail on the 16th of April, 1999. The allegation of rape made by one employee, and denied means that one employee is obviously lying. Both are members of the same Union and it is representing both cases even though the positions being adopted by the two Union officials are totally contradictory. The Company has a moral obligation to protect its workers and provide them with a safe place to work. A thorough investigation (as was possible in the circumstances) was conducted. Proper procedure was followed at all times and the rules of natural justice were applied. Based on the investigation and the conduct of all concerned the Company concluded the worker was guilty of the charges against him. The Company believed that on the balance of probability he could not be believed. It could not continue to employ a worker whom it believed to be guilty of such a very serious offence.
This dispute concerns the dismissal of a worker on grounds of gross misconduct. It relates to an allegation of serious assault allegedly perpetrated by the worker on a fellow employee in the course of their joint employment on board one of the Company's vessels, and further allegations of misconduct in relation to the same employee.
It is noted that the employee had the option of seeking statutory redress for unfair dismissal under the Unfair Dismissals Acts 1977-1993. He opted, however, to have his grievance investigated by this Court, as a trade dispute, under section 26(1) of the Industrial Relations Acts 1946-1990.
Approach of the Court.
The Court is extremely conscious of the sensitivity and trauma for all involved in this case. It is not the function of the Court to establish the worker's guilt or innocence of the allegations laid against him. Rather, its role is to investigate the circumstances surrounding the dismissal in order to establish if the employer acted fairly, having regard to the objective standards of fairness to be expected of a reasonable employer. In accordance with the normal approach of this Court, that standard is measured in the context of what constitutes good industrial relations practice.
This required the Court to investigate the procedures followed by the Company in arriving at its decision. It also required the Court to review the nature and quality of the evidence on which the Company relied and to draw its own conclusion as to whether it provided a sufficient basis for the employer's decision.
The Company Investigation.
Having received the accuser's complaint the Company initiated an internal investigation. The investigation was undertaken by Senior Management. At all times throughout the investigation the worker denied the allegation made against him. In the course of its investigation the Company interviewed a number of employees. Despite being asked to do so by the worker's Union, the Company refused to provide them with copies of the notes of the meetings with these employees. The Company told the Court that it withheld the notes because it had reason to believe that the employees who had participated in the investigation would be subjected to intimidation and/or violence if their identity became known.
The worker was interviewed by the investigating team on a number of occasions. Certain questions were put to him which were based on the account of the incident and its surrounding circumstances given by the accuser and other employees. The worker declined to answer many of the question put. He told the investigating team that he was doing so on legal advice against prejudicing his position in the event of criminal proceedings relating to the subject matter of the investigation.
The Company made it clear to the worker that it would complete its investigation and make its decision based on the information available to it at the end of the investigation.
The Company proceeded to evaluate all of the evidence available to it and concluded that the worker was guilty of gross misconduct. His employment was terminated in April, 1999.
The worker appealed the decision to dismiss him under the Company's internal appeals procedure but the decision to dismiss was upheld.
The Court Investigation.
In its submission to the Court the Union strongly asserted the worker's innocence of the misconduct alleged. Moreover, it contended that the dismissal was unfair on procedural grounds in that the Company had failed to conduct an adequate or fair investigation. In particular, the Union argued that the manner in which the investigation had been conducted infringed the worker's right to basic fairness and natural justice. In support of this argument it relied on the Company's failure to identify those who had provided information to the Company, or to provide him with the written notes of the interviews with those employees.
The Union claimed that the trauma suffered by the accuser could have been due to an excessive consumption of drink rather than any incident as alleged. It was also claimed that if the incident had occurred, the perpetrator might be another employee.
The Union also claimed that the Company had placed heavy emphasis on a claim that the worker did not co-operate with the investigation despite the fact that in its view he had answered all relevant questions.
In the course of its investigation the Court took evidence from all those agreed by the parties to be relevant and who had been interviewed by the Company in the course of the internal investigation. The Court also took evidence from a number of witnesses who gave evidence on behalf of the worker.
The Company notes of interviews during the investigations were handed over to the Union at the hearings and time was given for their detailed consideration and response.
The Court also took evidence from the worker and from the accuser. In the course of the hearings the list of 13 questions which the worker had refused to answer, in the course of the internal investigation, were answered with a couple of exceptions. He categorically denied any involvement in the incident complained of.
The accuser gave her account of the incident and told the Court that she had no doubt that the worker was the attacker.
There was a direct conflict between the evidence given by the worker and that given by the accuser. The Court found the worker unconvincing and evasive on critical points in his evidence. The accuser gave her evidence in a frank and candid manner and the Court found her to be a credible witness.
Where there was a conflict between the version of events as recounted by the worker and that given by the accuser, the Court having considered all the information found the submission of the accuser to be more credible.
Like any employer, the Company has a duty to provide its employees with a safe working environment. That includes a duty to provide protection against attack by fellow employees. Having regard to the gravity of the incident alleged, the Company would have seriously failed in its duty to the accuser had it failed to vigorously investigate her complaint and to act appropriately if satisfied that the complaint was well founded. The Company was obliged to evaluate all of the evidence and information available to it and reach an honest conclusion as to the veracity of the accuser's complaint.
The Court accepts that the Company genuinely believed that by placing the source of the supporting information available to it in the public domain, it would have endangered the safety of the informants. It appeared to the Company that it was faced with the choice of either abandoning the investigation or possibly placing other employees in danger. Faced with this choice the Company decided to proceed with the investigation as best it could. Nonetheless, the Court believes that the Company should have sought ways of making the content of these notes available to the Union while preserving the anonymity of its sources.
Having considered all of the evidence, the Court is satisfied that the withholding of the notes did not have a significant influence on the outcome of the case. Essentially, it came down to a question of whether the accuser's version of the incident or that of the worker was to be believed. The Company preferred the account of the accuser. On the basis of its own evaluation of the evidence the Court is satisfied that the Company was fully justified in reaching the conclusion which it did. In the Court's view, any procedural deficiency which may have existed in the conduct of the internal investigation would be an insufficient basis for concluding that the Company had failed to reach an honest and fair conclusion in this case.
The Court, having considered all the evidence finds that the Employer's decision to dismiss the worker was not inconsistent with the behaviour of a reasonable Employer in the circumstances. The Court, therefore, does not find the dismissal to be unfair.
Signed on behalf of the Labour Court
28th March, 2000.______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.