INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY MAIREAD MC KENNA B.L. INSTRUCTED BY
BRENDAN LARNEY & COMPANY, SOLICITORS)
- AND -
(REPRESENTED BY DUNDALK RESOURCE CENTRE)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Alleged Unfair Dismissal.
2. The Company is a not for profit rural community development organisation in Co. Monaghan and is government funded. The dispute concerns a worker who commenced employment on the 26th October, 2004 as Community Development Worker. On the 21st February, 2005 the worker was advised by the employer that it intended to initiate an investigation into the circumstances in which the worker had provided training in a neighbouring community group from the 26th October, 2004 to 23rd November, 2004 on a personal basis rather than in her capacity as an employee of Drumlin Community Development Project. The Company subsequently carried out an investigation following which the worker was suspended. On the 15th April, 2005 the worker was informed that her employment was being terminated with effect from 26th April, 2005. The worker claimed that she was unfairly treated and on the 27th May, 2005 referred a complaint to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Court hearing was held on the 4th October, 2005.
3. 1. While the claimant was issued with a contract of employment by post, she did not have an opportunity to discuss this contract with Management.
2. The claimant was dismissed under paragraph 6 of the contract of employment when in fact the alleged misconduct charge did not interfere in any way with her employment in the Company. The claimant undertook the training with the consent andsanction of Management and outside of her normal hours of work.
3. The claimant was not given the opportunity to meet with Management to discuss issues of concern to her following her suspension and subsequent dismissal.
4. 1. The investigation carried out by Management indicated that clear breaches of terms and conditions of employment had occurred and had been recognised, understood and accepted by the claimant in her meeting with the independent investigator. The investigation was assisted by the cooperation of the claimant who acknowledged that she conducted and received payment for training with the neighbouring community active retirement group.
2. The claimant was provided with a copy of the investigator's report and requested to make comments. On the 4th April, 2005 a decision was taken to place the claimant on suspension .While the Company received a letter from the claimant on the 8th April , 2005 taking issue with the procedures, at no time did this letter dispute the matters at issue. i.e that the claimant received payment for training provided to an associate of the company while in its employment.
3. In circumstances where an employee accepts payment for work which represents a conflict of interest with the employer's company then this amounts to a serious breach of conduct which could result in dismissal. The claimant was dismissed fairly and in accordance with natural justice and fair procedures.
The Court is satisfied that the procedures followed by the employer in reaching the decision to terminate the claimant's employment were deficient in a number of respects as follows:
1. There was at least the possibility that the claimant was under a genuine misunderstanding on the claimant's part as to whether she was being asked to undertake the training in question in the course of her employment or in a private capacity. This possibility appears not to have been seriously considered by the employer.
2. In the notice dated 21st February, 2005, the employer gave the impression that the purpose of the impending investigation was to clarify what had occurred in the context of a continuing employment relationship. The claimant was never informed that the investigation was into alleged misconduct or that her employment was at risk.
3. When the report of the investigation was completed the claimant was denied a fair or adequate opportunity to address the Board in her own defence before the decision to dismiss her was taken.
In these circumstances the claimant was denied the benefit of fair process and the dismissal was therefore rendered unfair.
In these circumstances the Court recommends that the claimant be reinstated her former position without loss of pay.
Signed on behalf of the Labour Court
6th October, 2005______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.