AD92236

Labour Court Database __________________________________________________________________________________ File Number: CD92684 Case Number: AD92236 Section / Act: S13(9) Parties: COMMISSIONERS OF IRISH LIGHTS - and - THE NATIONAL UNION OF CIVIL AND PUBLIC SERVANTS

Subject:
Appeal by the Commissioners against Rights Commissioner's recommendation No. S.T. 314/92 concerning the demotion of a worker.

Recommendation:
9. Having considered the submissions from the parties to this
appeal the Court is satisfied that the Rights Commissioner's
recommendation should be upheld subject to the following amendment
- that the claimant is restored to his previous rank from the 1st
December, 1992 and that salary loss be incurred from date of
demotion to that day.

The Court accordingly rejects the appeal and upholds the Rights
Commissioner's recommendation subject to the above amendment.

The Court do decides.

Division: Ms Owens Mr Brennan Mr Rorke

Text of Document__________________________________________________________________

CD92684 APPEAL DECISION NO. AD23692

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1990


PARTIES: COMMISSIONERS OF IRISH LIGHTS
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)

and

THE NATIONAL UNION OF CIVIL AND PUBLIC SERVANTS


SUBJECT:
1. Appeal by the Commissioners against Rights Commissioner's
recommendation No. S.T. 314/92 concerning the demotion of a
worker.

BACKGROUND:
2. The Commissioners of Irish Lights are the general Lighthouse
Authority for Ireland and are responsible for maintaining aids to
navigation around the coast of the whole island.

3. The worker who held the position of Executive Officer (E.O.)
was employed as a cashier in the Lighthouse Depot, Dun Laoghaire.
On the 10th June, 1992 the worker received a letter from
management asking him to attend for interview on 12th June, 1992
concerning certain aspects of his work. The worker was also
advised that he could be accompanied at the meeting by a Union
official representative. The Union who was to represent the
worker was not available on that day and requested a postponement
of the meeting. The Company declined to postpone the meeting and
the interview took place at 10.00 a.m. on 12th June, 1992. The
worker was notified by management later that day that he was to be
demoted to clerical officer (grade 1) with effect from 15th June,
1992.

4. The Union referred the dispute to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner
investigated the dispute on 24th September, 1992 and issued the
following findings and recommendation dated 13th October, 1992:-



"1. The first point which needs to be stressed is that no
charge has been made by the employer that the matters
complained of related in any way to personal gain by the
claimant.

2. The employment is a "Uniformed Service"; it is therefore
surprising to learn that there are no set procedures, agreed
or in place, for handling grievances. The absence of an
internal appeal procedure I find to be mystifying given that
the penalty here imposed amounts to a loss of #2,200 per
annum. However I do note from the letter dated 10/6/92 to
the claimant that a disciplinary code seems to exist (items 1
to 5 refer).

3. In the absence of an appeal procedure it seems to me that
every care must be taken to accord with the demands of fair
procedures to which the claimant has a constitutional right
and such right has been upheld in the law courts on many
occasions. The procedures adapted here were seriously flawed
in two respects. Firstly the claimant was denied
representation of his choice and secondly he was not given a
chance to prepare a proper defence.

4. To give an employee who had a serious family circumstance
(which was known to all) just one and a half working days in
which to reply to a series of charges which necessitated a
lot of historical research and to study 20 odd pages of
appended reports is unfair.

And in addition to deny a postponement in order that he could
have his chosen representatives present placed him at a grave
disadvantage I would suggest.

5. As it transpired at least one of the charges related to
another individual and apparently this did not emerge until
after the disciplinary interview on the 12/6/92. No employer
with reason can embark on an exercise which can end in
dismissal or grave loss of status and income to an employee
with such flaws in its case and methodology".

and he recommended

"In my view the case against the claimant was not properly
proved. The penalty imposed was excessive anyway. I
recommend that the claimant is restored to his previous rank
and that his salary loss is made up to date. I further
recommend that he receives a job specification which is
agreed with his Trade Union and that he is then placed on 12
months probation on this agreed specification. Any failure
by him to meet the requirements of the specification can then
be processed by his supervisors in a proper manner through
fair procedures".



6. The Company appealed against the Rights Commissioner's
recommendation under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on 8th December, 1992.


COMPANY'S ARGUMENTS:
7. 1. The worker had ongoing difficulties in the performance of
his duties as cashier. The Company made every effort to
assist and support the worker (details supplied to the Court).


2. The worker, in view of the support and assistance received
from management, was aware of management's doubts about his
ability to carry out his functions.


3. It is clear that the worker breached accepted procedures
for maintaining records and was aware of the seriousness of
his actions (details supplied to the Court).


4. The Company considers that, having taken all circumstances
into account, it has acted fairly and reasonably in this case.


UNION'S ARGUMENTS:
8. 1. The worker was promoted to the position of Executive
Officer in January, 1988 and after an 18-month probationary
period was confirmed in the position, which implies that
management were satisfied with his performance.


2. The worker had never been formally spoken to about his
work performance until the interview of 12th June, 1992. He
was given inadequate notice of that interview and was refused
a deferment so as to allow him be represented by the Union
Official of his choice.


3. The worker had personal problems of which the Company was
aware. In addition he was required to take on extra duties to
cover for staff shortages.


4. Management failed to meet its responsibilities as it
failed to make the worker aware of its dissatisfaction with
his work performance. Management took no steps to remedy a
situation with which it was dissatisfied.



DECISION:
9. Having considered the submissions from the parties to this
appeal the Court is satisfied that the Rights Commissioner's
recommendation should be upheld subject to the following amendment
- that the claimant is restored to his previous rank from the 1st
December, 1992 and that salary loss be incurred from date of
demotion to that day.

The Court accordingly rejects the appeal and upholds the Rights
Commissioner's recommendation subject to the above amendment.

The Court do decides.
~

Signed on behalf of the Labour Court


Evelyn Owens
__________________
22nd December, 1992. Deputy Chairman.
M.D./J.C.