Labour Court Database __________________________________________________________________________________ File Number: CD921 Case Number: AD92136 Section / Act: S13(9) Parties: DUBLIN CORPORATION - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
An appeal against a Rights Commissioner's recommendation No. B.C. 40/91 by the Corporation regarding the demotion of a worker.
Recommendation:
5. The Court is satisfied that the conclusion of the Rights
Commissioner to the effect that the demotion of the claimant was
an excessive reaction to a situation which could not be either
predominantly or entirely laid at the claimants door is correct.
The Court however is not satisfied that, taking into account what
the Corporation agreed was a good employment record over a number
of years, the Corporation took sufficient steps to support and
guide the claimant in the exercise of his supervisory functions in
a particularly difficult work situation.
The Court therefore upholds the recommendation of the Rights
Commissioner to the effect that the claimant retain his
remuneration as a Supervisor, but does not uphold the
recommendation that this be on a red circle basis.
The Corporation should re-instate the claimant to supervisory
duties but not in the location where the difficulties arose and
should ensure adequate initial support to restore his level of
performance. Normal procedures relating to work-performance
should then apply.
The Court so decides.
Division: Mr Heffernan Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD921 APPEAL DECISION NO. AD13692
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: DUBLIN CORPORATION
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. An appeal against a Rights Commissioner's recommendation No.
B.C. 40/91 by the Corporation regarding the demotion of a worker.
BACKGROUND:
2. 1. The worker has been employed in the housing maintenance
branch of the housing department since 2nd May, 1967. He was
appointed as a housing supervisor in July, 1982. Since 1988
the worker was responsible for supervising 13 flat complexs in
the North Inner City including the Sheriff Street complex.
2. In March, 1989, the worker's supervisors expressed concern
at what they regarded as the unsatisfactory condition of some
of the blocks of flats under the worker's supervision (details
supplied). Letters expressing dissatisfaction were sent to
the worker in March, 1989, February, 1990 and May, 1990.
Despite letters, inspections and meetings (details supplied),
the Corporation remained unhappy with the worker's performance
in the Sheriff Street area. The worker was interviewed in the
housing department on 20th August, 1991 and a recommendation
was subsequently sent to the Principle Officer of the Housing
Department to demote the worker to the grade of housing
attendant. This recommendation was appealed by the Union and
the appeal was heard on 18th September, 1991. This meeting
was adjourned to allow the Union to consider the matter. The
Union had not responded when the Corporation made an order
demoting the worker on 14th October, 1991. This was
communicated to the worker by letter dated 23rd October, 1991.
3. The Union's appeal of the demotion was rejected by the
Corporation at a meeting on 25th October, 1991. The dispute
was then referred to the Rights Commissioner and an
investigation took place on 18th November, 1991. The Rights
Commissioner's findings and recommendation, as set out below,
was issued on 3rd November, 1991
1. I am satisfied that the condition of the
maintenance service in the Sheriff Street area has
given rise to some concern in recent times.
2. I am not at all satisfied that responsibility for
this state of affairs can be entirely or predominantly
laid at the door of the worker.
3. I believe other factors need to be taken into
account including the fact that the worker has a large
area of activity to supervise ranging over many sites.
4. I believe that up to relatively recently the record
of the worker with Dublin Corporation has been a pretty
good one.
5. I can see the logic in Dublin Corporation deciding
to assign another person to the supervisory role.
6. However the demotion of the worker with
consequential impact upon his earnings and eventual
pension rights does appear to me to be an excessive
reaction to a situation which, I have said, cannot be
either predominantly or entirely laid at the workers
door.
*RECOMMENDATION
In the light of the above I recommend that the worker
carry out the new duties assigned to him but that he
retain, on a red circle basis, his remuneration as a
Supervisor. In making this recommendation I do so on
the clear conviction that neither party should use it
in the future as a precedent.
The worker was named in the recommendation.
The Corporation appealed the recommendation to the Labour
Court under Section 13(9) of the Industrial Relations Act,
1969. A Labour Court investigation took place on 20th
January, 1992.
CORPORATION'S ARGUMENTS:
3. 1. The Rights Commissioner's recommendation does not appear
to have taken into account the fact that the worker had misled
his superiors by submitting signed reports which were clearly
incorrect as to the performance of work assigned to him and
that he had stated that work was carried out satisfactorily
when the contrary was the case (details supplied).
2. The Rights Commissioner would appear to have been
incorrect in stating that the worker did not have
responsibility for the state of affairs at Sheriff Street.
The Rights Commissioner seemed to think that other factors
needed to be taken into account including the fact that the
worker had larger areas of activity to supervise. The worker
had not the most onerous area to supervise nor had he the
largest staff to supervise(details supplied). Since the
worker was demoted and a different worker assigned to the
Sheriff Street complex, the standard of maintenance has
improved considerably (details supplied). There were also
complaints about areas other than Sheriff Street under the
worker's supervision.
3. The Corporation take the view that the Rights
Commissioner's decision to "Red Circle" the worker's
remuneration in the circumstances is tantamount to encouraging
workers to be less than satisfactory in the performance of
their duties.
UNION'S ARGUMENTS:
4. 1. The worker has been employed by the Corporation for 24
years and in all of that time, there had been no complaints
about the standard or quality of his work until March, 1989.
This has been acknowledged by the Corporation who went on to
say that the worker's demotion was not a disciplinary matter.
There were no complaints of any nature until the local
elections of 1989 and then about 2 blocks of flats. The
worker is responsible for the supervision of 20 blocks. The
worker is being penalised for the condition of 2 blocks of
flats which are old and in such a state as to make them
difficult to either clean or keep in proper order (details
supplied). The worker lived up to his responsibilities as a
supervisor and the flats were cleaned as notified to the
Corporation (details supplied).
2. The Corporation insisted that the worker undergo a medical
examination despite the fact that the worker had an excellent
attendance record with virtually no absences. The Corporation
would not agree to a Union proposal that the 2 blocks of flats
be cleaned by a team from the cleansing department and
monitored thereafter (details supplied). Photographs were
taken of the area of work that the worker supervised. It
would appear that this was not done for any other supervisor
in the Corporation.
3. The worker is 5 years away from retirement. His demotion
will not alone affect his weekly pay but also his pension will
be severely affected. The decision to demote the worker was
an arbitrary one and contrary to natural justice as the worker
had a right to have his appeal heard before the decision was
made. The worker was only informed of his right of appeal
after the decision was made. What the worker required in this
case was a proper back up system from his superiors.
DECISION:
5. The Court is satisfied that the conclusion of the Rights
Commissioner to the effect that the demotion of the claimant was
an excessive reaction to a situation which could not be either
predominantly or entirely laid at the claimants door is correct.
The Court however is not satisfied that, taking into account what
the Corporation agreed was a good employment record over a number
of years, the Corporation took sufficient steps to support and
guide the claimant in the exercise of his supervisory functions in
a particularly difficult work situation.
The Court therefore upholds the recommendation of the Rights
Commissioner to the effect that the claimant retain his
remuneration as a Supervisor, but does not uphold the
recommendation that this be on a red circle basis.
The Corporation should re-instate the claimant to supervisory
duties but not in the location where the difficulties arose and
should ensure adequate initial support to restore his level of
performance. Normal procedures relating to work-performance
should then apply.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
________________________
3rd March, 1992. Chairman
J.F./J.C.