Representation at a Disciplinary Meeting

“Our company disciplinary policy provides for representation in the form of a work colleague only and our company does not recognise trade unions. Can I refuse to allow an employee to bring their trade union representative to meetings held in the course of a disciplinary process?”

Jennifer O'Sullivan writes:

Many employer policies specifically provide for representation in the form of a work colleague only. This is particularly the case where companies chose not to recognise trade unions. It is an integral part of the right to fair procedures, however, that an employee is given the opportunity to have a representative in any disciplinary process. Does this infer, however, that the employee is entitled to have a trade union as a representative?

The Constitution

Many cases before the Courts and Tribunals have addressed the issue of whether an employee has an entitlement to have a solicitor involved in a disciplinary procedure as their representation, the issue of the legal position on trade union representation is impacted upon by the Constitution which, at Article 40.1.1(iii) recognises:

“The right of the citizens to form associations and unions”.

While there is a right to join a trade union, however, that right does not imply any duty on any employer beyond respecting that right in itself and does not oblige any employer to negotiate with a trade union. The Irish courts have consistently resisted attempts to force employers to accept collective bargaining.

In Dublin Colleges Academic Staff Association v City of Dublin Vocational Education Committee [1982], the Plaintiffs claimed that they were entitled to be represented by a newly formed association in all negotiations relating to the terms or conditions of their employment with their employer. The Court said that whilst the Plaintiffs had a constitutional right of association, there was:

“no corresponding obligation on anybody or person, such as the defendants herein, to recognise that association for the purpose of negotiating the terms and conditions of employment of its members, or for any purpose.”

That decision was affirmed on appeal to the Supreme Court [1986] ILRM 296.

More recently, the Supreme Court considered the Industrial Relations (Amendment) Act 2001 which attempted to provide a mechanism for eventual compulsory bargaining in the workplace. In Ryanair v The Labour Court [2007] 4 I.R. 199, Ryanair, who were not unionised, succeeded in resisting a determination by the Labour Court to compel it to enter collective bargaining with IMPACT. The Supreme Court expressly acknowledged that Irish industrial relations legislation “must be given a proportionate and constitutional interpretation so as not unreasonably to encroach on Ryanair’s right to operate a non-unionised company”.

A further noteworthy statement from the Ryanair case is as follows:

“As a matter of law Ryanair is perfectly entitled not to deal with trade unions nor can a law be passed compelling them to do so. There is an obvious danger however in a non-unionised company that employees may be exploited and may have to submit to what most reasonable people would consider to be grossly unfair terms and conditions of employment. With a view to curing this possible mischief the Industrial Relations Acts 2001 and 2004 were enacted.”

The Employment Appeals Tribunal

In terms of the approach of the employment law forums, there are quite a number of Employment Appeals Tribunal decisions on the issue of an employee’s entitlement to have legal representation during internal procedures, but much less case law dealing with the issue of trade union recognition.

In the case of Joe Kelly –v- Finlay Breton (Irl) Limited [2007], an issue arose regarding trade union recognition. The employee attempted to attend a reconvened disciplinary hearing with a representative from a trade union that the company did not recognise. The company did in fact recognise another trade union, but the employee was not a member of that union. The company invited the representative to participate as a private individual on behalf of the employee. When the representative refused to act in that capacity, the individual conducting the disciplinary hearing also refused to continue since it was against company policy. In the course of the hearing under the Unfair Dismissals Acts, the claimant alleged that the company was hostile towards his union membership and he had wanted someone to represent him in a fair way. The claimant also stated before the Tribunal that the company refused him trade union representation.

Importantly, in their decision, the Tribunal stated that that:

“it appears to the Tribunal that the real issue concerning the allegations of harassment and racial abuse became clouded with the issue of union recognition by the company which is not a matter for consideration by this Tribunal”.

In the case of Christina Knowles v Dunnes Stores [2012] the employee was offered the right to have a representative in the form of a work colleague attend. As part of her claim, the employee stated that she was not offered the right to have a trade union representative present as Dunnes did not recognise the union. The employee was awarded €10,000 given that Dunnes had committed a number of procedural breaches. The Tribunal’s determination made no comment, however, on the issue of trade union recognition and representation.

In Sharon O’Halloran v Dunnes Stores [2011], a check out operator was dismissed after she was seen on CCTV serving her husband and not charging him for goods. Dunnes stated that it was company policy that employees do not serve family members. The employee was brought into a meeting to investigate the issues but, when she asked if she needed someone present with her, she was informed that it was just an investigation.

The employee subsequently brought her trade union representative to the disciplinary hearing but she was informed that the company policy was that she could only have a work colleague with her. The meeting did not proceed as the employee did not want to attend without the union involved and the employer would not allow it. The parties reached an impasse, as Dunnes attempted to reschedule the meeting but the employee would not attend without her union representative. The employee maintained that she was denied the opportunity to defend herself with a representative of her choice under SI 146/2000. As agreement could not be reached on a hearing, the manager issued a decision to dismiss based on a review of all of the documents and the facts of the situation.

The division of the Tribunal, chaired by Ms Kate O’Mahony, determined as follows:

“The claimant contended that the respondent breached her right to fair procedures in that she was not allowed to have her trade union official to represent her at the disciplinary meetings arranged for 16 March or 12 May in accordance with SI 146/2000 (Code of Practice on Grievance and Disciplinary Procedures) and that she had not been afforded an opportunity to answer the allegations against her. The Tribunal rejects these contentions. The respondent had a disciplinary and dismissal policy in place which is in general conformity with the guidelines in SI 146/2000. In affording the claimant the opportunity to bring a colleague of her choice with her to the scheduled disciplinary meetings, the respondent was in compliance with its own policy and indeed with Clause 4 of SI 146/2000, which defines “employee representative” as including, inter alia, a colleague of the employee’s choice.

A clear line of authorities emanating from the superior courts establish that an employee facing disciplinary action is entitled to the benefit of fair procedures and that what these demand will depend on the employee’s terms of employment and the circumstances surrounding the disciplinary action (See Barrington J in Mooney v An Post [1998] 4 IR 288 at 289 and Laffoy J in Shortt v Royal Liver Assurance Limited [2009] E.L.R. 240 at 251 where the earlier code under the Industrial Relations Act 1990 was before the Court).”

The Tribunal upheld the decision to dismiss the employee for breaches of her employer’s policies and for abusing her privilege card. The Tribunal accepted the loss of trust in the employee that resulted from the breaches of policy.

The Labour Court

The Labour Court, conversely, has in a number of cases directed that grievance and disciplinary procedures should conform to the standard of the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000). In addition, while the mechanism for referring a trade dispute to the Labour Court under section 20(1) of the Industrial Relations Act is intended to be a voluntarist system, with recommendations being neither binding nor enforceable, the Labour Court has, in cases where a company has declined to engage, issued a reminder that the Court is empowered to investigate a dispute on an ex-parte basis and to summons witnesses to attend before it.

In the case of Dunnes Stores Tralee and MANDATE CD/05/344, the Labour Court addressed a referral under s43(2) of the Industrial Relations Act following the suspension of three Dunnes Stores employees who claimed that Dunnes refused to allow them to be represented by a union. Dunnes did not dispute this claim but asserted that the Code of Practice allowed the employer to make the choice as to whether employees would be represented by colleagues or union representatives. Furthermore, Dunnes noted that its internal disciplinary procedure, which was incorporated into contracts of employment which had been accepted by the workers, provided for representation in the form of a work colleague only.

The Labour Court ruled that “it is the employee and not the employer who has the right of election as between the modes of representation provided for by the Code of Practice”. The outcome of the case was that the complaint, which had been brought by the union, was deemed well-founded.

However, in the landmark Ryanair decision, referenced above, the Supreme Court was critical of the Labour Court’s approach in dealing with a referral under the Industrial Relations (Amendment) Act 2001 and the Industrial Relations (Miscellaneous Provisions) Act 2004 which Ryanair had alleged was being used by pilots to achieve compulsory trade union recognition ‘through the back door’.

A dispute arose in 2004, when Ryanair introduced a new fleet of aircraft which necessitated the retraining of a number of its Dublin-based pilots. Ryanair would pay the €15,000 cost of the retraining but the pilots concerned had to agree that should "Ryanair be compelled to engage in collective bargaining with any pilot association or trade union within five years of commencement of your conversion training, then you will be liable to repay the full training costs".

The pilots subsequently entered into a dispute with Ryanair over the application of the repayment of such costs and the matter was referred to the Labour Court by the employee’s union, IMPACT under the legislation referred to above.

Under those Acts, the Labour Court has jurisdiction to investigate and to make binding determinations on disputes referred to it where a number of key pre-conditions are met, primarily:

• a trade dispute exists
• it is not the practice of the employer to engage in collective bargaining (in the Ryanair case, a crucial question was whether the existing information and consultation processes already in place in Ryanair amounted to “collective bargaining”), and
• internal dispute resolution mechanisms have failed to resolve the dispute.

These provisions provide a system whereby the Labour Court could, in certain circumstances, where an employer did not recognise a trade union for collective bargaining purposes, issue a binding ruling on a trade dispute. That determination could then be enforced in the Circuit Court if not complied with by the employer.

The issue of whether the pre-conditions set out above had been satisfied was considered by the Labour Court in the Ryanair case. While the Labour Court found that the Industrial Relations Acts did not require Ryanair to negotiate with trade unions and could not be used to enforce trade union recognition against an employer, it nonetheless determined that it had jurisdiction to investigate a trade dispute. It interpreted the definition of “trade dispute” and the reference to a “difference” as permitting the Labour Court to investigate a difference between the pilots and Ryanair concerning the terms of their employment as amounting to a trade dispute for the purposes of the Act.

Ryanair had argued that it has always had a policy of not negotiating with trade unions, outlining instead that it prefers to deal directly with its employees and that it operates employee representative committees where such matters were resolved and that in effect there was no trade dispute between the parties.

The evidence before the Labour Court was that in common with many employers Ryanair had established consultative bodies known as Employee Representative Committees (ERC). It also held “Town Hall” meetings, which were the methods by which new policies and procedures were introduced. Ryanair argued before the Labour Court that the existence of these consultative bodies and processes amounted in effect to collective bargaining such that the Labour Court had no right to adjudicate on the dispute. It also argued that no bona fide trade dispute existed between the parties and it submitted that this was part of a strategy on the part of the union to compel trade union recognition.

The Labour Court determined that these processes did not amount to collective bargaining. It analysed the communications issued by the company to the employees and it was considered that if it was the practice of the employer to engage in collective bargaining there would have been some central negotiation on issues such as agreement establishing the employee representative committee (ERC), pension benefits and training arrangements. The Labour Court found that while Ryanair communicated with employees, it was not its practice to engage in collective bargaining negotiations. Further, the factual background was that the pilots had withdrawn from the ERC process and as such there was not at the time of the referral an ERC in place for the pilots.

Ryanair successfully appealed to the Supreme Court. As part of their judgment, the Supreme Court held that the Labour Court, in determining whether there was a trade dispute, should have investigated whether there was internal machinery for resolving the perceived problem and whether that machinery had been exhausted.

The Supreme Court held that the unilateral withdrawal from machinery put in place by the employer would not of itself entitle the employees to assert that there was no collective bargaining process in being. The Supreme Court disagreed with the Labour Court’s approach to whether or not machinery existed for collective bargaining negotiations. The Supreme Court stated:

"if there is a machinery in Ryanair whereby the pilots may have their own independent representatives who sit around the table with representatives of Ryanair with a view to reaching agreement, if possible, that would seem to be “collective bargaining”

The Supreme Court found that the Labour Court’s approach in determining whether the existing machinery in Ryanair amounted to collective bargaining was fundamentally unfair.

Evidence was given at the hearing by officers of Ryanair to the effect that the ERC mechanism amounted to collective bargaining. The Supreme Court held that if that factual situation was going to be disputed that should have been done by “sworn or at the very least unsworn oral evidence before the Labour Court from pilots working in the company”. The Supreme Court held that the Labour Court’s reliance only on written submissions was unfair.

Conclusion

The approaches of the Courts and employment law forums towards the issue of trade union representation during a disciplinary process, is not uniform. The Constitution, and case law surrounding the right to associate, is supportive of the ability of an employer to clearly state in its policies that the right to representation is limited to a work colleague only. However, as against that, a employee’s right to representation must be adequate and effective.

The Supreme Court in examining the issue of legal representation in the case of Alan Garvey v Minister for Justice, Equality and Law Reform and the Governor of Mountjoy Prison and the Attorney General (Notice Party) [2006] ILRM 486 stated there could be no automatic right to legal representation but the requirement of fair procedures may include such a right “in an appropriate case”. It has been found that individuals have been denied natural and constitutional justice where they were refused legal representation in circumstances where the potential penalties were serious.

This landscape may also shift in the future, with unions pressing the government to honour the commitment in the programme for change to introduce statutory collective bargaining.

The legal position, at present, is that there is no automatic entitlement to trade union representation in a disciplinary process pursuant to the decisions of the Supreme Court. The prudent approach for employers, however, may be to consider any exceptional request on its own merits and to determine whether or not an employee is adequately represented, having regard to the complexity of the issues under investigation and the seriousness of the potential consequences of the disciplinary process.