INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
FOOD SAFETY AUTHORITY OF IRELAND (FSAI)
(REPRESENTED BY TOM MALLON B.L. INSTRUCTED BY ARTHUR COX, SOLICITORS)
- AND -
(REPRESENTED BY ASSOCIATION OF HIGHER CIVIL & PUBLIC SERVANTS)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Claim for withdrawal of Report.
2. The dispute concerns two workers who are employed in senior positions in the Company. In early 2005 they were the subject of two investigations into a claim for travel and subsistence allowances relating to their attendance at a workshop. While a number of workers were interviewed in relation to the investigation the two Claimants were not interviewed. A Report was issued which was critical of the two workers. The Union claimed that they were unfairly treated and sought to refer the issue to a Rights Commissioner for investigation. The Company objected to such a referral. On the 6th March, 2006, the Union 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 29th September, 2006.
3. 1. The Association accepts that the Chief Executive Officer ("the CEO") is entitled to investigate any matter that he reasonably feels requires investigation . However, the individuals under investigation have rights including the right to be represented. The CEO attempted to deny them that right in his letter of 15th February, 2005, and in refusing to meet their union representative. They have a right to be heard. They were never interviewed by the investigator at any stage into events surrounding the workshop. The investigator should not also be a judge into the outcome to the investigation. The fact is that the CEO was a co-investigator. He is, therefore, not in a fit and proper position to pass judgement on any conclusions drawn.
2. The Claimants have the right to have their characters and reputation protected during any investigation. Procedures were not put in place to ensure this. The first investigation ran for over one month before the Claimants became aware of it by the inadvertent mislaying of a fax.
3. As neither of the claimants was interviewed during the investigation, incorrect conclusions were drawn by the investigator. The CEO was presented with full information and supporting documentation by one of the Claimants in February, 2005. Both the Claimants placed themselves at the disposal of the investigating officer once they became aware that an investigation had been initiated.
4. The Claimants would like a written, clear and unequivocal apology to include an acknowledgement of the fact that the manner in which the two investigations were initiated, handled and concluded caused significant distress by calling into question their unblemished personal and professional characters and a conclusive statement that there was no wrongdoing and that these claims are in fact fully justified. Additionally, the final Report (6th May, 2005) should be withdrawn as it is factually incorrect and draws incorrect conclusions.
4. 1. It was the obligation of the CEO, as chief accounting officer, to arrange to have an appropriate investigation conducted into the circumstances where issues arose in relation to the claiming of expenses. He ultimately determined that no further action should be taken. This is indicative of the fact that the final Report had no adverse effect on the Claimants or either of them and in the circumstances it would be wholly inappropriate that the Court recommend they receive an apology.
2. The Report cannot be withdrawn. The organisation is obliged to account for all of the public funds which it utilises and cannot remove from its files a document which must be available, for example, to be considered by the Comptroller and Auditor General and for proper management purposes.
3. It is clear from letters written to each of the Claimants (20th July, 2005) that as far as the CEO is concerned and as far as the organisation is concerned the mater is now closed. No allegation was made against either of the Claimants and no disciplinary sanction or procedure was invoked against either of them .
4. It is undoubtedly the case that the transactions in relation to the expenses claimed by various people attending the workshop were dealt with in an unusual manner. However, the organisation was not only entitled but was under a duty to inquire into those matters and having conducted such an inquiry it is not feasible, appropriate or proper that the Report be "withdrawn".
The Court has carefully considered both the written and oral submissions of the parties.
It is clear to the Court that relations between the Respondent and its staff, including the Claimants, are not good and that the investigation the subject of these claims was dealt with in that context, which exacerbated the situation generally.
It is the Court’s view that the investigation was flawed, and did not substantially comply with the requirements of the Code of Practice on Disciplinary and Grievance Procedures under SI 146 of 2000 and in particular that the Claimants were not given the opportunity to respond to the allegations made against them.
The Court is further of the view that had the investigation been conducted appropriately then it is more than probable that the apparent difficulties which had given rise to the investigation in the first place would have been resolved during the course of the investigation.
It is accordingly the Court’s finding that the conduct of the investigation was unsatisfactory and consequently resulted in erroneous conclusions on matters of fact.
Notwithstanding that context within which the investigation was conducted and the unsatisfactory nature of the investigation it is also the Court’s view that both the responses of the Claimants and the manner of those responses during the investigation were unduly combative, unhelpful and lacked an appropriate degree of co-operation.
The Court is satisfied that the conclusions and findings of the Report are factually erroneous. The Court recommends that this Recommendation should form an Addendum to that Report for all purposes in the future. It is inappropriate for the Court to make a finding requiring the withdrawal of the Report because the Report and the investigation giving rise to it are themselves matters of fact which cannot be removed from the record of what happened.
While it is inappropriate for the Court to recommend that an apology be furnished to the two Claimants, the Court acknowledges that no wrongdoing of any kind took place on the part of either of the two Claimants with respect to the matters giving rise to the investigation. The matter of an apology is appropriately one for the parties themselves in the light of both what has taken place and this Recommendation.
In the view of the Court the behaviour and conduct of both parties at various stages during the course of the investigation giving rise to these claims left a lot to be desired.
Furthermore, it was unsatisfactory that the Respondent was neither prepared to meet with the Union in these matters nor to attend before the Rights Commissioner.
The Court expects that in the light of the experience of these claims relations between both the parties here and the Respondent and its staff generally will considerably improve in the future and that every effort will be made by the Respondent and the Union to ensure that good industrial relations practices between them will be implemented.
The Court so recommends.
Signed on behalf of the Labour Court
26th October, 2006______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.