INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 43(2), INDUSTRIAL RELATIONS ACT, 1990
DUNNES STORES TRALEE
(REPRESENTED BY MARCUS DOWLING B.L. INSTRUCTED BY BCM HANBY WALLACE, SOLICITORS)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Alleged Breach of the Code of Practice on Disciplinary Procedures.
2. The dispute concerns three workers who were suspended with pay on the 10th September, 2004, for alleged breaches of Company policy. They were advised to attend disciplinary hearings on 13th September, 2004, at specific times. The Claimants attended at the requested times with a representative of their choice (a Union Official ). The Union claims that Management cancelled the meetings because each of the workers were accompanied by a Union Official. Subsequent scheduled meetings were also cancelled on the same basis and the Union claims that Management did not offer an explanation for the cancellation of the meetings. The Union sought the assistance of the Labour Relations Commission under Section 26 of the Industrial Relations Act, 1990, under the Code of Practice on Disciplinary Proceedings (Declaration ) Order, 1996 (SI No.117 of 1996). The Company declined an invitation to engage under the process. On the 11th April, 2005 the Union submitted a request to the Labour Court to carry out an investigation into an alleged a breach of the Code of Practice on Disciplinary Procedures under Section 43(2)of the Industrial Relations Act, 1990. A Court hearing was held on the 18th October, 2005.
3. 1. The Company is in breach of the Code of Practice as set out in the Industrial Relations Act, 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order, 2000, in particular with reference to Section 2, Section 3 and Section 4.
2. The Company is also in breach of the Agreement reached with the Union in 1996 which led to the ending of a national dispute dealing with procedures.
3. The Company is in breach of the European Convention on Human Rights Act, 2003, specifically in relation to Article 2.
4. There is a number of cases of precedent in which the principles of natural justice and fair procedures were upheld. They are also of significance in the context of an entitlement to representation of one's choice during the process. The cases are outlined, as follows:
Gearon v Dunnes Stores Ltd, UD 367/1988 (Madden & Kerr)
Marshall v Roches Stores UD 258/2001, 19th December, 2002
Garvey v Ireland  IR 75
Maher v Irish Permanent plc  4 IR 288.
4. 1. The Company's disciplinary procedures do not breach the Code of Practice. Its main purpose is to" provide guidance to employers, employees and their representatives on the general principles which apply in the operation of grievance and disciplinary procedures". The Code of Practice specifically recognises that if differences exist in the manner in which employers deal with disciplinary matters depending upon the terms of the contracts of employment between the employer and its employees and whether or not the employer negotiates with Trade Unions for bargaining purposes. The Company does not negotiate with Trade Unions for collective bargaining purposes and its disciplinary procedures unequivocally state that the right to be represented is by a colleague or friend only. The Company is entitled to contract with its employees and organise its business in this manner.
2. The report of the High Level Group on Trade Union Representation, which the Code of Practice implements, does not recommend that employees be given an automatic right to be represented by a Trade Union representative.
3. The definition of "employee representative" does not derive from the Report of the High Level Group. In circumstances where the Code of Practice is clearly based upon that Report and implements it, it is clear that the definition referred to in Sub-Section 4 permits an employer to allow representation by either a Trade Union representative or another employee. The definition states that "employee representative" includes Trade Union representatives and colleagues. This interpretation is in keeping with the definitions of "employee representative" in the various Statutes referred to in the Code of Practice, under none of which Mandate Trade Union represents in the context of an employment where the employer does not negotiate with Trade Unions.
This dispute came before the Court by way of a complaint by MANDATE Trade Union ("the Union") that Dunnes Stores Tralee ("the Employer")had contravened the Code of Practice on Grievance and Disciplinary Procedure contained in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures ) (Declaration) Order, 2000, S. I. 146 of 2000. The complaint was investigated by the Court pursuant to Section 43(2) of the Industrial Relations Act, 1990.
Position of the Parties.
The substance of the complaint is that the Employer refused to allow the three named former employees to avail of representation by the Union in dealing with allegations of serious misconduct under its internal disciplinary procedure. It is the Union's case that the Code of Practice entitles an employee accused of misconduct in employment to avail of representation by an employee representative. That term is defined by the Code of Practice as including a colleague and a registered trade union. The Union contends that it is for the employee to elect between those modes of representation.
The Employer does not dispute the material facts of the case but denies that a contravention of the Code of Practice occurred. It contends that the Code of Practice allows an employer to provide for representation of employees in disciplinary matters by either a colleague of the employee's choice or by a registered trade union. The Employer submitted that the choice between these modes of representation is a matter for the employer in drafting its internal disciplinary procedure. The Employer's internal disciplinary procedure provides for representation of employees by a colleague or a friend only. This disciplinary procedure was incorporated into the contract of employment of the individuals to whom the complaint relates and was accepted by them. The Employer submitted that in these circumstances no breach of the Code of Practice occurred.
In order to adjudicate on this complaint it is first necessary for the Court to interpret the relevant provisions of the Code of Practice. In so doing the Court is conscious that the Code of Practice is primarily an industrial relations instrument which was drafted by industrial relations practitioners for the guidance of employers, employees and their representatives. It is expressed in plain language which should easily be understood by those to whom it is addressed. Consequently, the interpretation of the Code should not be approached as if it were a statute or the product of legal draftsmanship.
The Code of Practice provides at Section 2 (General), Paragraph 2, that the provisions of the Code should apply unless alternative agreed procedures exist in the workplace which conform with its general provisions for dealing with grievances and disciplinary issues. Section 4 of the Code, (General Principles) provides at paragraph 4:
"For the purposes of this Code of Practice "employee representative" includes a colleague of the employee's choice and a registered trade union but not any other person or body unconnected with the enterprise"
Paragraph 6 of Section 4 provides that disciplinary procedures must comply with the general principles of natural justice and fair procedures and goes on to particularise those requirements as including, inter alia:
"That the employee concerned is given the opportunity to avail of the right to be represented during the procedures"
It is clear that the combined effects of Paragraphs 4 and 6 of Section 4 of the Code of Practice is to provide that an employee facing a complaint under a disciplinary procedure is entitled to representation by an employee representative who can be either a colleague or a representative of a registered trade union. The net issue of difference between the parties is whether the Code of Practice allows an employer to determine the mode of representation as between those options or whether it is the prerogative of the employee to decide. Put another way, it is a question of whether in drafting an internal disciplinary procedure an employer should provide for both forms of representation, from which the employee may elect,(as contended for by the Union) or whether the employer can confine the mode of representation to that of a colleague only (as contended by the Employer).
The Code of Practice was part of a package of measures introduced to give effect to the Report of the High Level Group established under Clause 9.22 of the Partnership 2000 Agreement. The Employer contends that the Code of Practice is based on that Report and since the Report did not recommend that workers be given an automatic right to trade union representation, the relevant provisions of the Code should not be construed as giving such a right.
While the Code of Practice takes account of the recommendation of the High Level Group, as appears from its Introduction, in so far as it deals with disciplinary procedures it replaced an earlier Code of Practice which was contained in S.I. No. 117 of 1996. This Code of Practice similarly defined the term "employee representative" at Section 1, paragraph 2, as follows;
"For the purposes of this code of practice "employee representative" includes a colleague of the employee's choice and an authorised trade union but not any other person or body unconnected with the enterprise".
Hence, while the present Code of Practice took account of the Report of the High Level Group, the definition of "employee representative" was adopted from the earlier Code (with a minor terminological modification) and not from any provision of that Report.
It is clear from the Code of Practice as a whole that its object is to provide for good employment practice in the internal processing of grievance and disciplinary issues. To that end it provides that procedures must be fair and in conformity with the principles of natural justice. The right to representation is obligated by the requirements of procedural fairness and is clearly for the benefit of the employee. It follows that it is the employee and not the employer who has the right of election as between the modes of representation provided for by the Code of Practice. A contrary conclusion would not accord with the principles of natural justice nor with accepted standards of objective fairness. Accordingly, it is the opinion of the Court that a refusal to allow an employee representation by a registered trade union in the processing of a disciplinary issue constitutes a breach of the Code of Practice.
Having regard to the foregoing the Court is satisfied that the Employer breached the Code of Practice in refusing the three workers to whom the complaint relates the right of representation by a trade union in the proceedings leading to their dismissal. Consequently the Court holds that the Union's complaint is well-founded.
The Court recommends that the Employer amend its internal disciplinary procedures forthwith to allow for the representation of employees by a colleague or a registered trade union, as the employee shall elect, so as to comply with the provisions of the Code of Practice.
Signed on behalf of the Labour Court
1st November, 2005______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.