ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00000547
Parties:
| Worker | Employer |
Anonymised Parties | A Security Guard | A Security Company |
Representatives |
| Internal HR |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00000547 | 09/08/2022 |
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Date of Hearing: 29/06/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).
Background:
On 10 May 2022, an incident occurred during which the Worker allegedly granted a visitor access to the high-security data centre where he worked without proper approval. Consequently, he was suspended pending an investigation. The Worker asserts that the procedures invoked by the Employer in relation to the investigation process are unfair because he is being denied the opportunity to be represented by a legal representative. |
Summary of Workers Case:
On 10 May 2022, an incident occurred during which the Worker allegedly granted a visitor access to the high security data centre where he worked without the proper approval. Consequently, he was suspended pending an investigation. The Worker stated that he would not co-operate with the investigation because the Employer refused to follow both its own policies and procedures as well as the principles of natural justice in relation to the conduct of the investigation. Specifically, he stated that he was not allowed to be accompanied by a legal representative during the process and that as he is not a member of a trade union, he could not be accompanied by a union official. |
Summary of Employer’s Case:
On 10 May 2022, an incident occurred during which the Worker allegedly granted a visitor access to the high security data centre where he worked without the proper approval. The Employer deemed this incident to be a breach of security protocol and due to the seriousness of the incident, the Worker was immediately placed on paid suspension pending the findings of an investigation. However, the Worker refused to attend any investigation meetings, neither immediately following the incident or at any time since. In the first instance the Worker refused to co—operate with the process because the person appointed to conduct the investigation was not his line manager, which the Employer disputed. With a view to progressing the matter, the Employer appointed a new Investigator, but the Worker still refused to co-operate with the process on the grounds that he was not afforded the right to be accompanied by a legal representative during the investigation, which the Employer refused to allow. As the Employer could not permit the Worker to resume his work until an investigation had been completed, and as the Worker was not cooperating with the investigation, it was decided to continue the Worker’s suspension unpaid. |
Conclusions:
In conducting my investigation, I have considered all relevant submissions presented to me by the parties.
I find that the Worker was made aware of the proper right to representation at the proposed investigation meetings in accordance withS.I. No. 146 of 2000 Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000. Specifically, it is stated in the Code of Practice that an "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”.
In accordance with the Code, I find that the Employer is therefore entitled to refuse to allow the Worker to be accompanied by a legal representative or anybody unconnected with the company. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I recommend both that the Worker engage with the investigation process as proposed by the Employer and that if he wishes to be represented, his representative should be either a work colleague or a trade union official, in line with the Code of Practice on Grievance and Disciplinary Proceduresoutlined above.
Dated: 9th August 2023
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
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