INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
TIPPERARY COUNTY COUNCIL
(REPRESENTED BY BYRNE WALLACE SOLICITORS)
- AND -
(REPRESENTED BY GARETH HAYDEN B.L. INSTRUCTED BY JAMES REILLY & SON SOLICITORS)
Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr Shanahan
1. An appeal against a Recommendation of a Rights Commissioner no: r-155293-ir-15/GC.
2. This case concerns the use of GPS data as the primary source of information to use against the Claimant into allegations of gross misconduct.
- The Claimant said the there is an agreement in place between the Council and its employees entitled “South Tipperary Local Authority Global Positioning System (GPS) Protocol” which states that “the GPS will not be used as the primary source of information in instances which involve or might involve discipline proceedings”.
The Council denies that its proposal to use information in its investigation into allegations of gross misconduct against the Claimant is in breach of its own GPS Protocol.
- This matter was referred to Rights Commissioner for investigation and Recommendation. On the 10th August 2015 the Rights Commissioner issued the following Recommendation:-
- 1. The GPS Protocol
I note that the practical and sensible interpretation of this as articulated by one of the Union Officials involved in agreeing the Protocol was that the system would not be used as a monitoring and supervision device to check on somebody who may be engaged in another activity for a very short duration. It may be advisable for the wording to be clarified in any future review of the Protocol. In this instant case, I find that the system was not the primary source of information.
2. Grievance Investigated by Disciplinary Investigator
In the interests of transparency and natural justice, I recommend that an independent external investigator, who has not been involved in the process so far, be appointed to carry out the investigation as part of the disciplinary process. So there is no ambiguity, clear terms of reference should be drafted and given to the Claimant by the Council for this process.
- 1. The GPS Protocol
The Claimant appealed the Rights Commissioner's Recommendation to the Labour Court on the 8th September 2015 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 1st March 2016.
3. 1. The allegations of gross misconduct relate to the use and operation of the Council’s GPS in vehicles they provide to their employees. The evidence which the Council propose to use in the investigation is derived from the GPS.
2. The Claimant raised a grievance relating to the use of the GPS as the primary source of information against him. The grievance was referred to a HR consultant who was already appointed as the external investigator into the allegations of gross misconduct.
3. It is the Claimant’s case that any information gleaned from the GPS cannot be used against him in accordance with the Protocol.
4. 1. The Council submits that the GPS did not constitute the primary source of information upon which it based its decision to launch an investigation into allegations of gross misconduct against the Claimant.
2. The Council is willing to abide by the recommendation if the Rights Commissioner in the interests of transparency and perceived natural justice concerns by proceeding to appoint an independent investigator not previously attached to the process, with clear terms of reference.
The Court notes that the parties have agreed to implement point 2 of the Recommendation of the Rights Commissioner
The Court has considered carefully the written and oral submissions of the parties in relation to the matter under appeal.
The Appellant seeks to have the Court consider the application to an internal procedure of the Respondent of a protocol which is the product of a collective agreement between the Respondent and Trade Unions. The Court does not have the benefit of the views of the Trade Unions who are party to the collective agreement whose terms are relied upon in the within matter.
The Court is asked, in reliance on the terms of the collective agreement, to recommend that certain material should not be made available to an internal procedure of the County Council which has not yet come to a conclusion. The Appellant seeks to have the Court intervene in the conduct of the procedure so as to set parameters around its operation.
The conduct of the internal procedure described to the Court is, by acknowledgement of both parties, the responsibility of the Respondent. It would be entirely inappropriate for the Court to intervene in the prospective conduct of internal procedures of the Council in a recommendation made under the Industrial Relations Acts 1946 – 2015.
The Court recommends that the Respondent ensure that the internal procedure referred to is applied with due regard to the acknowledged requirement for adherence to fair procedure in its conduct. The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
16th March, 2016.Deputy Chairman
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.