Labour Court Database __________________________________________________________________________________ File Number: CD90733 Case Number: AD9112 Section / Act: S13(9) Parties: GROUP 4 SECURITAS (IRELAND) LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation B.C. 205/90 concerning the demotion of a worker.
Recommendation:
6. The Court has considered the submissions made by the parties.
It is clear to the Court that the Rights Commissioner considered
the demotion of the worker concerned to be warranted particularly
in view of the terms of his letter of appointment to the job, and
in this the Court concurs fully.
It is also evident that the Rights Commissioner was of the opinion
that the offence did not warrant a potentially permanent demotion,
and thus attempted to limit it in terms of time. The Court is of
the same opinion but clearly accepts the difficulties for the
Company that arise.
The Court, therefore, is of the view that the recommendation
should be amended to provide simply that the worker concerned be
promoted to the next vacancy for Section Sergeant which arises
without any bar as regards time. The Court so decides.
By way of recommendation it is clear to the Court that the
worker's shortcomings derive from his ability to carry out the
added duties of client liaison and supervisor, rather from any
lack of personal qualities and the Court suggests that prior to
repromotion the worker be given extended training in these aspects
of the job.
Division: Mr O'Connell Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD90733 APPEAL DECISION NO. AD1291
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9)
PARTIES: GROUP 4 SECURITAS (IRELAND) LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation B.C. 205/90 concerning the demotion of a worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company in
1971 as a security guard at Irish Rail and in 1976 he was promoted
to section sergeant in this area. In 1988 the worker was
relocated to another assignment for 3 months following a complaint
by management of Irish Rail. In July, 1990 the Company received a
complaint from Irish Rail about the worker. The Company had
recently taken over security duties for Irish Estates (Management)
Limited in Irish Life Centre and following a meeting on 13th July,
1990 between management and the worker he was transferred there as
section sergeant with effect from 16th July, 1990. A letter was
sent to the worker confirming this and outlining his duties. On
19th July, 1990 the Company received a complaint from Irish
Estates (Management) that the worker and a security officer had
been seen drinking coffee in the public coffee dock at 8.50 a.m.
when they should have been monitoring access to specific areas of
the centre, that this behaviour was unacceptable to Irish Estates
(Management) and that he would have to be removed from the site.
The worker was subsequently removed from the Irish Life site and
demoted to security officer with effect from 27th September, 1990.
The Union objected to this action and the matter was subsequently
referred to the Rights Commissioner's service for investigation
and recommendation. A Rights Commissioner investigated the
dispute on 19th November, 1990 and issued the following
recommendation -
"In the light of the above I uphold the decision of Management
to demote the worker but I believe that subject to continued
good behaviour on the worker's part this demotion should
cease one year after its implementation (i.e. 26th July,
1991). If a vacancy as a Section Sergeant is not available
at the end of this one year the period may be extended by not
more than a further 3 months.
I note that at the investigation Management confirmed to me
that since July, 1990 the worker's performance and conduct
had been satisfactory."
(The worker was referred to by name in the recommendation).
3. On 13th December, 1990 the Company appealed the
recommendation to the Labour Court under the provisions of the
Industrial Relations Acts, 1946-1990. The Court heard the appeal
on 28th January, 1991.
COMPANY'S ARGUMENTS:
4. 1. The worker was transferred and demoted because the client
companies would not have him as a section sergeant on site,
this Company has lost all confidence and trust in him to carry
out his supervisory duties to an acceptable standard and the
worker was warned of the consequences if he failed to perform
his supervisory duties in Irish Life. The worker was moved
from North Wall depot (Irish Rail) because the management
there stated that they were very unhappy with his attitude and
performance as a section sergeant and wanted him taken off the
assignment. In the letter from this Company to the worker
concerning his transfer to Irish Life it was stated that
should the worker "fail or allow anything to compromise the
excellent relationship that exists between Irish Estates
(Management) Limited and Group 4, then I will have no option
but to demote you." The incident in Irish Life was contrary
to the standing instructions. This failure to carry out the
security duties was the main reason why Irish Estates
(Management) Limited replaced their own security staff with
this Company. The worker's behaviour was totally unacceptable
to both Irish Estates (Management) and this Company.
2. The Rights Commissioner in his recommendation upheld the
decision and right of management to demote the worker, but did
not fully take account of the Company's main argument about
the loss of confidence and trust in the worker to carry out
supervisory duties. Therefore, the Rights Commissioner's
finding that the worker be automatically promoted to a section
sergeant after a year, (even if no jobs exist or if it would
have to be to an assignment where he is not wanted by the
customer) is seriously flawed. It ignores the fact that
before the worker can be promoted the Company's confidence and
trust in him must be restored. In addition, the Rights
Commissioner did not properly consider the Company's argument
that the promotion of any worker within the security industry
must take account of four criteria. These are the suitability
of the candidate for the particular assignment, the needs of
the customer, needs of the business and needs of the
assignment. Therefore, the Rights Commissioner ignored
management's right to choose the best candidate for the job.
Although the worker's conduct and performance as a security
officer is satisfactory, the Company's concerns about his
appointment as a section sergeant still remain. The Company
contends that, as the Rights Commissioner found that the
decision to demote the worker was fair and reasonable, the
timing of any future promotion should be left to the Company's
discretion. The worker would of course be at liberty to apply
for jobs as they arose.
UNION'S ARGUMENTS:
5. 1. The worker has over 20 years' service with the Company, 12
of these as section sergeant. During his employment with the
Company he has been complimented on his work and as recently
as May, 1990 was cited in the Company's magazine for bravery
and swift attention to duty in foiling a raid by 9 armed and
masked men on the Irish Rail North Wall Depot (details
supplied to the Court). On 13th July, 1990 the worker was
transferred from North Wall by mutual agreement, apparently
because of personality differences on the part of local Irish
Rail Management. The worker did not accept that any
difficulties had arisen on his part.
2. On his third day of training in Irish Life (on 19th July,
1990), the worker concerned and the security officer on duty
decided to stop briefly at the open plan coffee shop in order
to "grab" a quick cup of coffee before the arrival of
pedestrian traffic. The worker did not intend to break
procedure and only followed the normal "modus operandi" in his
previous assignment of grabbing a quick cup on the job at a
time and place where it would least interfere with the
carrying out of the assignment. The worker's demotion was
unfair, excessive and out of all proportion to the alleged
infraction. The worker did not get a fair hearing. On 28th
August, 1990 management themselves admitted that their
response to the Irish Life incident could be seen as "over
reaction." In addition, the Union has never been given an
opportunity to deal with and resolve the outcome of the Irish
Rail disagreement.
3. In July, 1990 the Union suggested as an alternative to
demotion that the worker be transferred as section sergeant to
the "Tango" patrol; however, management refused this on the
grounds that it would involve continued contact with Irish
Rail. However, subsequent to his demotion the worker has been
rostered for the "Tango" patrol and continued to work for
Irish Rail on the Dublin dart contract. Even if discipline
was warranted, management's response to the incident in Irish
Life was excessive and involved a loss of earnings for the
worker of approximately #70 per week, plus a loss of 3 days
annual leave as well as sick leave. The worker has already
lost in excess of #1,800 in pay. Although the Rights
Commissioner's recommendation was well below the Union's claim
the worker accepted the recommendation. Management confirmed
to the Rights Commissioner that since the worker's demotion
his performance and conduct have been satisfactory. In the
circumstances, the Court should as a minimum endorse the
Rights Commissioner's recommendation.
DECISION:
6. The Court has considered the submissions made by the parties.
It is clear to the Court that the Rights Commissioner considered
the demotion of the worker concerned to be warranted particularly
in view of the terms of his letter of appointment to the job, and
in this the Court concurs fully.
It is also evident that the Rights Commissioner was of the opinion
that the offence did not warrant a potentially permanent demotion,
and thus attempted to limit it in terms of time. The Court is of
the same opinion but clearly accepts the difficulties for the
Company that arise.
The Court, therefore, is of the view that the recommendation
should be amended to provide simply that the worker concerned be
promoted to the next vacancy for Section Sergeant which arises
without any bar as regards time. The Court so decides.
By way of recommendation it is clear to the Court that the
worker's shortcomings derive from his ability to carry out the
added duties of client liaison and supervisor, rather from any
lack of personal qualities and the Court suggests that prior to
repromotion the worker be given extended training in these aspects
of the job.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
13th February, 1991 Deputy Chairman.
U.M./J.C.