INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Disciplinary procedures
2. The dispute before the Court concerns a claim by the worker that management breached disciplinary procedures in relation to an internal disciplinary appeals hearing. It is alleged that management acted outside internal agreed procedures and the terms and spirit of Labour Court Recommendation LCR17148.
The worker claims that management failed to:-
(a) allow or provide for any of four nominated witnesses to attend a disciplinary appeal and to give evidence.
(b) the appeals officer was incorrect in seeking a reason for calling these witnesses.
(c) the appeals officer was incorrect in deciding whether or not the witnesses should be heard.
(d) the appeals officer was incorrect to deny the right to question witnesses.
(e) and that he would be acting outside of procedure, due process and natural justice if he issued an appeals decision prior to investigation and recommendation by the Labour Court.
The worker wants to call the Chief Medical Officer as one of his witnesses and also seeks a change in the present Chairman hearing his appeal.
The Company states that the claimant is in the process of appealing a penalty of dismissal consequent on the outcome of a disciplinary hearing before his immediate line manager. It claims that the worker declined to provide any rationale or explanation as to why he wished four nominated witnesses to be called to his appeal hearing.
The worker referred the dispute to the Labour Court under Section 20(1) of the Industrial Relations Act,1969 and agreed to be bound by the Court's recommendation. The Court investigated the dispute on the 16th January, 2003.
3. 1. The decision to dismiss the worker was made without him having received any formal written or final warning from management.2. The case against the worker is predicated on a statement made by an inspector and purports to be a record of an interview that took place between the workerand two supervisors concerning anomalies on the worker's timesheet.
3. No notes were taken in relation to the alleged interview. The worker was not asked to sign off or confirm the accuracy of any record of this meeting.4.When the error was discovered on the worker's timesheet, he instructed his supervisor to have it removed immediately before the timesheet was processed by the pay office.5. The worker contends that the issues in this case demand that each witness give evidence before an impartial Chairman privately and answer any questions put to them by the claimant or his representative free from influence, pressureor professional loyalty.6. Each witness in this case should give evidence separately and in accordance with internal agreed procedures and Labour Court Recommendation LCR17148.COMPANY'S ARGUMENTS:4. 1. The claimant failed to work rostered turns of duty and claimed payment for these turns of duty in completing his timesheet for that week.2. The appeals manager indicated that he would consider the attendance of witnesses if the rationale for such attendance was explained and he could make a judgement in regard to their relevance.3. Disciplinary hearings are simply required to be set within a framework and format which is reasonable and fair, having regard to principles of natural justice. The agreed disciplinary procedures within the company provides such a framework and process.4. At all times in the application of procedure, fair and reasonable discretion was exercised in this particular case. The appeals manager was very accommodating in his endeavour to process the worker's appeal5. Opportunity for questioning was afforded by the appeals manager within the parameters described in Labour Court Recommendation LCR 17148.6. The Court is asked to recommend that the appeals manager has acted properly in rightly asserting discretion in regard to access to witnesses.
This case revolves around the claimant's contention that he has the right to nominate witnesses to be heard at his appeal hearing and that such witnesses must be heard and must be heard separately. Reservation has also been expressed by the claimant's representative at the nominated higher manager progressing with the appeal and his replacement as Chairman was sought.
The Court has considered the submissions of both sides and takes cognisance of the Company's position at the hearing when management indicated that due to the explanation contained in the claimant's submission for the necessity to hear both supervisors evidence separately, conceded that such a request was reasonable in the light of the information given.
The Court takes account of the serious nature of the appeal and, therefore, understands the importance of the need for the appellant to present as full a case as possible and to ensure that natural justice has been served. However, the Court also takes the view that any request for witnesses to be heard must be accompanied by an explanation of the broad import of their evidence to the case and the need for the higher manager to exercise reasonable discretion in deciding on which witnesses should be called. The Court so recommends. The decision as to whether such discretion was exercised properly may be the subject of a different forum.
It is regrettable that such issues seem to arise on a frequent basis within this Company. It appears that the Court has been put in the position of clarifying procedures for this appeal hearing even though similar issues where the subject of LCR 17148 which has been accepted by the parties.
The claimant believes that there is a certain understanding between himself and the Chief Medical Officer concerning the case before the appeal hearing, which would support his appeal. In such circumstances, the Court recommends that he should be allowed to call the Chief Medical Officer as a witness.
As the process has already commenced, the Court does not recommend a change in the Chairman on the basis that the process will be conducted in accordance with the established procedures outlined in LCR 17148 and in this recommendation.
Signed on behalf of the Labour Court
23rd January, 2003______________________
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.