INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Disciplinary procedures.
2. The worker concerned was employed by the Company as a locomotive driver based at its Limerick Depot.
In March, 2001, following an incident, the Company began disciplinary procedures against the worker concerned. He was dismissed on the 22nd of February, 2002.
The Union argues that fair procedure was not afforded to the worker concerned. He was not allowed to choose a representative from another Depot to attend the disciplinary hearings with him. The Company maintains that fair procedures were adhered to and the worker concerned could have chosen a representative from the Limerick Depot.
The issue was referred to the Labour Court on the 6th of March, 2002, in accordance
with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 12th of June, 2002. The Union agreed to be bound by the Court's recommendation.
3. 1. It is a basic right of the worker concerned to be allowed to choose a representative to accompany him at the disciplinary hearings.
2. The worker concerned should be re-instated with effect from the 22nd of February, 2002, and the disciplinary process begin again.
4. 1. The worker concerned was invited to attend the disciplinary hearings with a representative of his own choice from the Limerick Depot.
2. The disciplinary procedure was implemented correctly.
The dispute concerns the alleged unfair dismissal of one worker (the claimant) by the Company for serious misconduct. The essence of the claimant's case is that he was denied fair procedures in the investigation of the complaint against him and that, in consequence, the resulting dismissal was unfair.
Having regard for his length of service with the Company the claimant had the option of seeking statutory redress for unfair dismissal under the Unfair Dismissals Act, 1977-1993. Having been advised of his rights under the Unfair Dismissals Acts and the possibility that he could be precluded from seeking redress under those Acts if the dismissal is investigated by the Court pursuant to the Industrial Relations Acts, the claimant opted to proceed with the present case.
The claimant accepts that he was guilty of an act of serious misconduct which would normally justify dismissal. However, he claims that there were mitigating circumstances relating to certain personal difficulties which he was experiencing at the relevant time.
Background to the Dismissal.
The claimant is a member of the Irish Locomotive Drivers Association(ILDA) and the incident giving rise to his dismissal occurred in the aftermath of a prolonged and bitter dispute between that association and the Company which, this dispute, among other things, involved claims by ILDA for recognition as a representative Trade Union. The circumstances giving rise to that dispute were investigated jointly by the Court and the Labour Relations Commission who issued a report dated the 18th of December, 2000.
The Company disciplinary procedure was invoked against the claimant on the 22nd of March, 2001. As was his entitlement the claimant sought a personal hearing into the complaint against him and also sought to be represented at the hearing by a colleague who, at that time, was also the Executive Secretary of ILDA. The Company refused to allow representation by this individual. They indicated that the claimant could be represented by a recognised Trade Union or by a colleague in his own depot. Neither option was acceptable to the claimant.
It appears that a number of further attempts were made to arrange a meeting under the disciplinary procedures to investigate the complaints. However no such meeting took place as the issue of representation was not resolved.
Because of the difficulties of arranging representation at a personal hearing the claimant made a written response to the Disciplinary charges made against him. This form of response is provided for in the Company's Grievance and Disciplinary Procedures. It is suggested that there was some understanding between the then Executive Secretary of ILDA and Senior Management of the Company that this approach should be adopted in the claimant's case. However, the Company again instructed the claimant to attend at a formal disciplinary interview and when he failed to do so a notice of dismissal was issued dated the 23rd of April, 2001. The claimant then initiated an appeal in accordance with the disciplinary procedure.
In separate developments regarding representation of members of ILDA in matters of Discipline, a series of one-day work stoppages occurred during May of 2001. These disputes were investigated by the National Implementation Body (NIB), which requested the Court to investigate and give its opinion on the fairness, or otherwise of
the procedures employed in Irish Rail in respect of disciplinary cases in dispute, with reference to the Code of Practice and Grievance in Disciplinary Procedures. Pending the determination by the Court of these questions, the Company deferred the hearing of the claimants appeal.
The Court subsequently issued its Opinion (Opinion Number 013) on the 25th of July, 2001.
In dealing with the question of the right to individual representation in Disciplinary matters the Court stated as follows:
"A named employee has represented employees outside his district in disciplinary cases on several occasions as have other colleagues outside there own district. However, when this named employee requested to be represented by an ILDA representative, this was denied. The Court is of the view that this is not unreasonable given the background to this case. The Court is also of the view that to afford the right to this named employee to represent employees as a fellow colleague in all cases where drivers joined ILDA would be tantamount to bestowing on him the same rights as a full time Trade Union official. This is clearly not a viable proposition as this named employee is employed on a full time basis as a train driver."
Following the issuing of the Labour Court Opinion further exchanges ensued between the parties on the question of the claimants right to representation at the appeal against his dismissal. The claimant appeared to be of the view that the Labour Court Opinion vindicated his right to be represented by the individual previously nominated by him. The Company did not accept that this construction was correct.
The question of the claimants right to representation was then referred to a Rights Commissioner. The Company did not attend the Rights Commissioner's hearing. The Rights Commissioner subsequently recommended that the claimant should be given the benefit of a hearing in accordance with the Company's Disciplinary machinery. However, the Rights Commissioner did not expressly rule on who should represent the claimant. A appeal against this Recommendation was subsequently lodged by the Company, but later withdrawn.
There were further unsuccessful attempts to arrange a meeting to consider the claimant's appeal against dismissal. Finally, the claimant attended a meeting with the appropriate Senior Manager of the Company for this purpose on the 20th of December, 2001. The claimant was unaccompanied at that meeting. It appears that this meeting was adjourned because the claimant was unaccompanied and the Manager in question advised him that the Company would endeavour to arrange representation for him. On the following day the claimant again attended before the Senior Manager unaccompanied. He indicated that he had nominated his chosen representative and was not willing to accept representation from any other source. This meeting was again adjourned until the 4th of January, 2002. There was subsequently correspondence between the Executive Secretary of ILDA and the Senior Manager involved in relation to the appeal.
The claimant finally attended the meeting on the 4th of January, 2002 without representation, that meeting proceeded and the Senior Manager in question upheld the decision to terminate the claimant's employment with effect from the 22nd of January, 2002.
There was a further right to anAd Miseracordiamappeal to a more Senior Manager and this was held on the 4th of February, 2002, with the claimant again being unaccompanied. This appeal was also rejected and the dismissal confirmed.
Conclusions of the Court:
The gravity of the misconduct committed by the claimant in this case is not in dispute. It is accepted that his actions were such as would normally lead to dismissal. He was, nonetheless, entitled to a fair opportunity to make representation on his own behalf in mitigation of the misconduct. Equally, the claimant was entitled to representation in making his case.
It appears to the Court that in the circumstances of this case the individual issue concerning the claimant became subsumed in the broader issue of the right of ILDA to represent its members through he Disciplinary Procedures of the Company. Because the issue was seen in that context the Company felt unable to make any exception to its stated position of not allowing an employee to be represented by a colleague outside
there own work area or district. Equally, the claimant and his advisors were not prepared to concede that any limitation could be placed on the right of an employee to select a representative of their choice.
In that regard it was clearly the opinion of the Court, as expressed in Opinion 013, that it was not a viable proposition to allow the person nominated by the claimant to representation rights in all cases.
Because the dispute concerning the individual representation of the claimant became embroiled in the broader dispute, the Disciplinary Procedures took an inordinate length of time to come to a conclusion. This, in the Court's view, was unfair and caused additional distress to the claimant. It is also the Court's view that both parties should have made more stringent efforts to try and deal with the issues affecting the claimant in isolation from the broader dispute concerning the right of ILDA to represent its members through the Disciplinary Procedures. However, the Court is of the view that the claimant himself must bear major responsibility for what occurred. It appears that at no stage was he prepared to consider the possibility of representation by a colleague within his own district. In that regard the Court is conscious of the fact that the claimant accepts that the offence was (a) admitted and (b) of such a serious nature as to warrant dismissal. Hence, the only plea that he was ever going to make in his defence was one of mitigation. Whilst it is clearly desirable that an employee in the circumstances of the claimant should have suitable representation, there is nothing before the Court to suggest that the points of mitigation were not adequately put to management or taken into account in reaching a final decision on the sanction to be applied.
In all of the circumstances, the Court cannot say that the dismissal itself was unfair. However, the Court feels that in the circumstances the claimant suffered additional distress and anxiety as a consequence of the prolonged period over which the Disciplinary Procedures had been extended.
In all the circumstances of the case, the Court recommends that the claimant should be paid an ex-gratis lump sum payment in the amount of €13,000 in full and final settlement of his claim.
Signed on behalf of the Labour Court
4th July, 2002______________________
Enquiries concerning this Recommendation should be addressed to Gerardine Buckley, Court Secretary.