INDUSTRIAL RELATIONS ACTS 1946 TO 2015
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY ANNE O'CONNELL, SOLICITOR)
Appeal of Adjudication Officer Decision No's: ADJ-00042106 (CA-00052864-001).
The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 15 June 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
On 11 May 2023 the Adjudication Officer issued the following Recommendation:
“As the employer has reported the theft on the night of April 15th – 16th 2022 to the Gardaí, I recommend that the issue is now left to the Gardaí to investigate.”
A Labour Court hearing took place on 5 January 2024.
This matter comes before the Court as an appeal of a decision of an Adjudication Officer given under the Industrial Relations Act, 1969. The worker, whose service is not such as to mean that he enjoyed the protection of the Unfair Dismissals Act, 1977 on the occasion, contends that he was unfairly dismissed. He maintains that the employer wrongly concluded, on the balance of probabilities, that he had engaged in theft while at work in a cash handling role. He submits that the procedures followed by the employer in deciding to dismiss him were deficient.
The employer submitted that it was satisfied, on the balance of probabilities, that the worker had engaged in theft and that the nature of their business was such as to mean that, having reached that conclusion it was proportionate and reasonable to dismiss the worker. The employer submitted that the business involved handling large amounts of cash and it was satisfied that the worker had, in the course of his work, stolen cash.
The parties confirmed to the Court that the matter of whether theft had occurred on the occasion was before the criminal courts. The parties also confirmed that a matter arising from the alleged theft was before this Court in a complaint made by the worker under the Payment of Wages Act, 1991.
The underlying logic of the within referral made to the WRC under Section 13 of the Industrial Relations Act, 1969 and the voluntary participation of the parties in the adjudication process of the WRC and the hearing of this court is that both parties must be desirous of achieving a voluntary, non-justiciable agreement between themselves as a means of resolving their trade dispute.
It is the conclusion of the Court, in exercise of pragmatism and common sense, that where the employer and worker are engaged in processes in the criminal courts as regards the matters underpinning this trade dispute, and, where the identical factual matrix underpins a justiciable appeal before this Court under the Payment of Wages Act, 1991, there is no reality to the proposition that this Court could issue a substantive decision in this industrial relations appeal which would have the remotest possibility of being accepted voluntarily by both sides.
In those circumstances, the Court recommends that the parties, in exercise of pragmatism and common sense, accept that their industrial relations trade dispute is resolved.
Enquiries concerning this Decision should be addressed to Aidan Ralph Court Secretary.