SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
CENTRAL REMEDIAL CLINIC
(REPRESENTED BY AISLING MCDEVITT)
- AND -
(REPRESENTED BY SIPTU TRADE UNION)
Chairman: Mr Geraghty
Employer Member: Ms Doyle
Worker Member: Mr McCarthy
1. Appeal Of Adjudication Officer Decision No. ADJ-00018772.
2. The employer received a complaint from a staff member that a racist slur had been uttered by a member of staff. The alleged victim could not be identified. The member of staff who made the complaint could not identify the alleged perpetrator definitively but gave a description. The Employer conducted an investigation and determined that the Worker had uttered the words concerned. As a result of a disciplinary process, a written warning was imposed. This was upheld on appeal. The matter was referred to an Adjudication Officer for investigation and Recommendation. On 30 May 2019 the Adjudication Officer issued the following Recommendation:-
- “ I am satisfied that the employer had every reason to believe that the comment was made by the worker and it was not unreasonable for the employer to invoke the disciplinary procedures and to impose a sanction in accordance with the procedures. I am recommending that the stage 2 written warning should not be withdrawn as it was a reasonable andproportionate sanction in the circumstances. I do not recommend the withdrawal of the Stage 2 warning letter. ”.
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 10 June 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on 9 August 2019.
The Court acknowledges that the Employer received a very serious allegation that required a serious and considered response. The fact that the Employer took the necessary time and effort to ensure that the allegation was treated with the seriousness that it deserves is highly commendable and appropriate.
Furthermore, the initial reaction of the Worker gave the Employer real cause for concern.
However, in this case, there was a straightforward conflict of evidence as to whether or not the alleged incident ever took place and some lack of certainty, if it did, as to who was guilty of uttering such an unacceptable racial slur. In addition, the alleged victim of the racist slur has never been identified.
This Court understands very well, from its own experience, the difficulty in determining the truth when there is a direct conflict in evidence. In this case, the Court is of the view that, in the absence of any corroborating evidence and in the absence of an alleged victim, the prudent course for the Employer would have been not to pursue the matter any further until or unless any alleged victim could be identified and/or some corroborating evidence was available.
It follows, therefore, that the Court does not believe that a disciplinary sanction should have been imposed.
While the Worker believes that the allegation and subsequent investigation were related to a complaint made by him against a manager just a day before the allegation at the centre of this case, there is no evidence that could enable the Court to reach a view on this belief, one way or the other, and the Court can offer no useful observations.
The Court notes that the disciplinary sanction has expired and notes with approval that this sanction has been expunged entirely from the Worker’s record.
The Court recommends that both parties now put this issue behind them.
Signed on behalf of the Labour Court
12 August 2019Deputy Chairman
Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.