INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY THE AMALGAMATED TRANSPORT AND GENERAL WORKER' UNION)
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Alleged breach of procedures in handling of disciplinary charge.
2. The Union's case is in regard to the alleged breach of procedure in handling of a disciplinary charge against the worker concerned. The procedure was initiated on the 2nd of April, 2001, in relation to an incident which occurred on the 16th of February, 2001. The incident involved a collision with the Kiltoom level-crossing gates and a train driven by the worker. The Company believes that the worker was at fault due to excessive speed, something the worker denies.
The worker was required to attend a disciplinary hearing, and the Union's case is that he was not allowed to call witnesses (eleven) in his defence. He also wished to call a nominated colleague to represent him. A letter to the worker on the 19th of April, 2001, contained the following:
In relation to your request to call eleven Iarnrod Eireann employees as witnesses at this hearing, please be advised of the following:
1. All witnesses who choose to attend this hearing will be afforded the opportunity to give evidence and/or make a statement on an individual-by-individual basis and without interruption from you or your representative.
2. The Company will not allow any witness to be dealt with in an adversarial or an intimidating manner by you.
3. The Company will only accept evidence, which is specific and relevant to the charges on the Form A dated 2nd of April ,2001.
Hearings on the 30th of August and 6th of October, 2001, failed to resolve the issue and the worker then referred his case to the Labour Court on the 6th of October, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 18th of April, 2002, the earliest date suitable to the parties. The worker agreed to be bound by the Court's recommendation.
3. 1. Regarding the incident in Kiltoom on the 16th of February, 2001, a signalman from Knockcroghery has admitted that he was at fault.
2. The Company's letter of 19th of April, 2001, denied the worker natural justice and fair procedure.
3. Statutory Instrument (S1) 146/2000 states that:
"the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses
4. The Company's own grievance procedure states that an employee may call witnesses and be accompanied by a fellow employee or a trade Union representative.
4. 1. The Company's disciplinary procedures do not provide for cross-examination or confrontation of witnesses by the employee and /or his representative or fellow employee.
2. The letter of the 19th of April was written as the Company did anticipate certain behaviour which was experienced previously when the worker's representative attended hearings.
3. The Company was more than reasonable in agreeing to facilitate up to 11 witnesses. It does not believe that the conditions in the letter of the 19th of April were unreasonable in the circumstances.
In the course of the hearing, the Company told the Court that it is prepared to call the witnesses nominated by the worker. In these circumstances, the Court recommends that the disciplinary hearing should now proceed on the following basis:-
1. Evidence or statements should be taken from witnesses nominated by the worker.
2. The worker or his representative should be afforded an opportunity to address questions to witnesses in relation to their evidence or statements.
3. The procedure followed should be the same as that normally followed by the Company in respect of similar disciplinary proceedings and should be consistent with the inquisitorial (as opposed to adversarial) nature of the process.
Signed on behalf of the Labour Court
9th May, 2002______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.