Labour Court Database __________________________________________________________________________________ File Number: CD91487 Case Number: LCR13457 Section / Act: S26(5) Parties: SOUTH EASTERN HEALTH BOARD - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
Dispute concerning the alleged victimisation of a worker.
Recommendation:
5. The Court has examined the sequence of events which led to the
Board's letter of 29th August in which it issued a formal written
warning and an order to transfer to the worker concerned and which
in turn has led the Union to allege that she has been
discriminated against contrary to the terms of Labour Court
Recommendation 13274.
Having regard to the submissions made by the parties the Court is
satisfied that the Board made no deliberate attempt to
discriminate against the worker but taking into account the
content of letters sent to her and the time at which it was
decided to send them it is clear to the Court that the intention
of the Board could very readily be seriously misinterpreted.
Further the worker's position in the Union would have tended to
make such a misunderstanding even more likely, especially amongst
her colleagues and fellow workers.
In these circumstances it is the view of the Court, that to allay
any lingering suspicion of malice on their part, the Board really
has no option but to withdraw all correspondence with the worker
effective from 10th May, 1991 up to and including its letter of
29th August. The Court so recommends.
However the Court further notes the seriously unsatisfactory
record of the worker in question as far as her attendance at work
is concerned. The purpose of this Recommendation is solely to
allay any doubts about the good faith of the Board. It is clear
to the Court that unless there is an immediate and sustained
improvement in her behaviour in this regard the Board will on the
basis of her pre strike record above be fully justified in issuing
the written warning in the context of the Disciplinary Procedure.
It is perhaps another unfortunate aspect of this issue that the
question of transfer of the worker appeared to become linked to
the disciplinary element of the Board's letter of 29th August.
The Court accepts that the matter of transfer is a separate issue
and derives from the necessity for kitchen staff to be regular and
dependable to ensure the proper care of patients in the hospital.
In the event that the worker does not improve her attendance
record it is the view of the Court that the Board will be entirely
justified in effecting her transfer to a less critical area of
work, entirely apart from any disciplinary action which might be
imposed.
Division: Mr O'Connell Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD91487 RECOMMENDATION NO. LCR13457
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(5), INDUSTRIAL RELATIONS ACT, 1990
PARTIES: SOUTH EASTERN HEALTH BOARD
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Dispute concerning the alleged victimisation of a worker.
BACKGROUND:
2. The worker concerned has been employed as an attendant at
Waterford Regional Hospital since September, 1980. She is a Union
representative in the catering section where she is employed. On
10th May, 1991 following a disagreement in the catering area each
catering assistant received a written warning from the Board
stating that a formal disciplinary inquiry would be made into
their refusal to meet with Hospital Management on 10th May, 1991.
The worker concerned who had also been involved received a formal
written warning advising her that her unauthorised absence from
duty on 21st April, 1991 and her insubordination would be
investigated by Management. The Union claimed that the worker was
being victimised by the Board because of her involvement in an
industrial dispute between the Union and the Board involving staff
at St. Otterans Hospital. (The dispute lasted from 19th April to
9th May, 1991). The dispute was settled following the Court's
intervention and the issue of Labour Court Recommendation 13274.
The Union claimed that the Board in its treatment of the worker
concerned was in breach of Clause 12 of L.C.R. 13274 which stated
"there will be no victimisation of any of the workers involved."
Management rejected the Union's claim stating that the worker was
being disciplined because of her poor attendance record.
Following a number of meetings at local level at which no
agreement was reached the issue was referred to the Conciliation
Service of the Labour Relations Commission and a conciliation
conference was held on 5th June, 1991. It was agreed at
conciliation that the worker accompanied by her Union
representative would attend a local Board of inquiry. However
following a ballot of the membership the Union declined to attend
the inquiry and advised the Board of its decision on 27th June,
1991. The Board proceeded with its investigation and advised the
worker by letter dated 29th August, 1991 that she was being
transferred to household duties at the Orthopaedic Unit of
Waterford Regional Hospital as from 9th September, 1991. The
Union disputed the Board's decision and referred the dispute to
the Labour Court for investigation and recommendation on the 3rd
September, 1991. The Court investigated the dispute on the 11th
October, 1991.
UNION'S ARGUMENTS:
3. 1. On Friday 10th May, 1991 five members of Management went
to the kitchen area and without notice sought a meeting of all
catering staff to discuss changes in the catering operation
(details supplied to the Court). All the workers in the area,
through their representative (the worker concerned) refused to
meet with Management without a senior Union official being
present. This was a reasonable position considering there
were rumours of imposed changes both during and following the
strike. The Board then issued formal letters of warning to
the workers including the worker concerned. The Board's
letter to her referred to "unauthorised absence on April, 21st
and insubordination." Management issued a further letter to
the worker on May, 14th referring to unauthorised absence on
21st April, and insubordination on 20th April.
2. The Board by its action is in breach of Section 12 of
L.C.R. 13274. The worker concerned is being victimised
because of the nature of the strike which took place between
19th April to 9th May, 1991. The original charges labelled
against the worker by the Board in its letters of 10th and
14th May, 1991, were substituted by "poor attendance" in the
letter dated 29th August, 1991. The reason the Board took
this action is that both incidents of 20th and 21s April were
strike related and the other incident of 10th May occurred on
the first day of the return to work. The Board was well aware
that the letters of 10th and 14th May could not be justified
as they were in clear breach of Clause 12 of L.C.R. 13274
regarding "victimisation." Management then introduced the
poor attendance issue at the last minute in an attempt to
justify their action. The Union requests the Court to
recommend that all letters be withdrawn and cancelled and that
no transfer takes place.
BOARD'S ARGUMENTS:
4. 1. The worker concerned has a long record of disruptive
behaviour (details supplied to the Court). She was warned in
the past about her behaviour and cautioned that future
problems would be dealt with by Management in a very serious
light. In the recent past the worker has been spoken to by
the catering manager and warned about her pattern of
attendance in accordance with the Disciplinary and Grievance
Procedures which have been drawn up by the Board in the last
twelve months. The occasions when the worker has been spoken
to in relation to her overall attendance are documented
(details supplied to the Court). On the occasions when the
catering manager spoke to the worker she formed a clear
impression that the worker had difficulty in accepting
authority.
2. Having regard to the incidents on 20th April and 21st
April, 1991, the Board sought explanations from the worker for
her conduct but received none. The Board is not prepared to
tolerate a situation where a senior manager is treated in a
disrespectful manner. The Board did not consider "picket
duty" as being a valid reason for the worker absenting herself
from duty without approval. The Board did attempt to
ascertain the circumstances surrounding the two incidents.
The worker was written to and invited to discuss the matter
with Management. However no explanation was received either
verbally or in writing.
3. The Board categorically rejects any suggestions of
victimisation of the worker concerned. There was never a
suggestion that any staff who participated in the dispute
would be penalised or treated less favourably than others.
The Board would not tolerate any action which would cause a
staff member to be singled out in the manner claimed by the
Union. The Board's record in this respect is above approach.
It is clear that there is a well established pattern of poor
attendances absence without approval, and disruptive behaviour
which stretches back before and continued after the dispute
which was confined to a total period of 19 days. The
attendance pattern of the worker concerned has continued to be
unsatisfactory since the dispute and the Board has every
reason to believe that this pattern will continue unless
corrective action is taken.
4. The Board is of the view that the worker's performance is
erratic and warrants disciplinary action. The catering
operation demands that staff be available for particular tasks
at particular times and the worker concerned is not capable of
performing to this standard because of her attendance pattern.
The Board has a right to transfer staff from one department to
another to meet service operation requirements. As the worker
concerned is an unreliable member of the catering team she is
now being transferred to alternative duties.
RECOMMENDATION:
5. The Court has examined the sequence of events which led to the
Board's letter of 29th August in which it issued a formal written
warning and an order to transfer to the worker concerned and which
in turn has led the Union to allege that she has been
discriminated against contrary to the terms of Labour Court
Recommendation 13274.
Having regard to the submissions made by the parties the Court is
satisfied that the Board made no deliberate attempt to
discriminate against the worker but taking into account the
content of letters sent to her and the time at which it was
decided to send them it is clear to the Court that the intention
of the Board could very readily be seriously misinterpreted.
Further the worker's position in the Union would have tended to
make such a misunderstanding even more likely, especially amongst
her colleagues and fellow workers.
In these circumstances it is the view of the Court, that to allay
any lingering suspicion of malice on their part, the Board really
has no option but to withdraw all correspondence with the worker
effective from 10th May, 1991 up to and including its letter of
29th August. The Court so recommends.
However the Court further notes the seriously unsatisfactory
record of the worker in question as far as her attendance at work
is concerned. The purpose of this Recommendation is solely to
allay any doubts about the good faith of the Board. It is clear
to the Court that unless there is an immediate and sustained
improvement in her behaviour in this regard the Board will on the
basis of her pre strike record above be fully justified in issuing
the written warning in the context of the Disciplinary Procedure.
It is perhaps another unfortunate aspect of this issue that the
question of transfer of the worker appeared to become linked to
the disciplinary element of the Board's letter of 29th August.
The Court accepts that the matter of transfer is a separate issue
and derives from the necessity for kitchen staff to be regular and
dependable to ensure the proper care of patients in the hospital.
In the event that the worker does not improve her attendance
record it is the view of the Court that the Board will be entirely
justified in effecting her transfer to a less critical area of
work, entirely apart from any disciplinary action which might be
imposed.
~
Signed on behalf of the Labour Court
John O'Connell
____________________
22nd October, 1991 Deputy Chairman.
T.O'D./J.C.