Labour Court Database __________________________________________________________________________________ File Number: CD925 Case Number: AD92137 Section / Act: S13(9) Parties: INTERNATIONAL CONTRACT CLEANER - and - SIPTU |
Appeal by the Company against Rights Commissioner's Recommendation No. BC 403/91 concerning the demotion of a worker.
Recommendation:
The Court considers the employee in this case as a supervisor
must have been reasonably aware that if any action further than
the report in the logbook was required this should have been by
communication through his Company supervisor, and not through
correspondence with the client.
The Court is not convinced that the correspondence was written
with malicious intent to harm a fellow employee. The Court
concurs with the view expressed by the Rights Commissioner that
the act of the employee writing to the client was injudicious.
However, the Court considers, that whilst it was injudicious to
write to the client, and it was a serious act on the part of
the employee, it did not warrant the penalty imposed.
The Court considers the Rights Commissioner was right to state
that a final written warning would have been more appropriate
in the circumstances. Accordingly the Court considers the
complainant should be reinstated in his former position with
effect from the date of issue of this recommendation. The
recommendation of the Rights Commissioner should be amended
accordingly.
The Court so decides.
Division:
Text of Document__________________________________________________________________
CD925 APPEAL DECISION AD13792
INDUSTRIAL RELATIONS ACT, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT 1969
PARTIES: INTERNATIONAL CONTRACT CLEANERS
(Represented by the Federation of Irish Employers)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. BC 403/91 concerning the demotion of a
worker.
BACKGROUND:
2. The worker was employed by the Company as a cleaning
supervisor on permanent night duty with responsibility for a
particular client company. As night supervisors do not have
contact with the clients there is a system in existence whereby
all correspondence i.e. requests, complaints and comments
between the client and the supervisors are entered into a
logbook.
In August 1990 two complaints concerning the standard of
cleanliness on the client's property were entered into the
logbook by a member of the client company. The worker
concerned thought that the complaints were directed at both
himself and a colleague and that it was in his interest to
point out to the client that neither of them was on duty on the
nights in question. As the worker did not have any notepaper
of his own he requested a member of the client's staff to write
a note to the client which he then signed. The memo was
written on the client company's headed paper. The client was
not satisfied with the memo and entered into further
correspondence with the worker regarding the general bad state
of the property for which he was responsible. The client also
sought an explanation for the poor condition of the property.
On learning of the correspondence between the worker and the
client company the Company itself wrote to the worker. As a
result a meeting was held on 20th September, 1991 and the
Company expressed its dissatisfaction at the way in which the
worker had dealt with the original complaints.
He had deviated from the normal procedure of entering all
correspondence into the logbook. From the Company's point of
view by writing to the client company in the manner in which he
did, the worker betrayed the trust and confidence which the
Company placed in him as a supervisor. The Company also felt
that the worker's purpose in writing the letter was to
undermine a supervisory colleague whom the worker alleged was
on duty the night the complaints in question arose. As a
result of the worker's breach of trust the Company felt that it
was left with no option but to demote the worker. The worker
was informed of the Company's decision by letter dated 9th
October, 1991.
The Union referred the issue to a Rights Commissioner for
investigation and recommendation. A Rights Commissioners
hearing took place on 21st November, 1991 and the following
recommendation issued on 9th December 1991.
"RECOMMENDATION:
In the light of the above I must conclude that the penalty
imposed on the worker i.e. his demotion to cleaning
operative, is out of proportion to the injudiciousness of
his action. I therefore recommend that he be restored to
his original position with effect from 1st November, 1991
and that the period intervening between his original
demotion and the restoration to his position be regarded
as a penalty by way of loss of income."
The worker was named in the recommendation.
The Rights Commissioner's Recommendation was appealed to the
Labour Court by the Company in accordance with 36(2) of the
Industrial Relations Act, 1990. A Labour Court investigation
took place on 31st January, 1992.
UNION'S ARGUMENTS:
3. 1. The worker felt that the complaints made were wrongly
directed at him. His sole purpose in writing the memo was
to inform the client that he was not on duty on the night
in question and was not therefore responsible for the
unacceptable state of the client's property. The memo was
written on the client's headed paper only because the
worker had no notepaper himself.
2. The inference that the memo was written in a hostile
manner, in order to undermine a colleague, is completely
untrue. At no stage did the worker make such an
admission. The only reason given, at the time, for the
worker's demotion was the writing of the memo to the
client company on its own headed paper. No other issue
was ever raised and accordingly other issues should not be
raised now.
3. Demotion of the worker to cleaning operative was too
severe a penalty for the alleged offence. It resulted in
a serious loss of pay and of status for the worker
concerned.
COMPANY'S ARGUMENTS:
4. 1. The worker ignored the normal procedure for dealing
with complaints in that he did not enter his comments into
the logbook. It was the responsibility of the worker as a
supervisor to either deal with the complaint or refer any
problems back to the client.
2. The fact that the correspondence was written on the
client company's headed paper , by an employee of that
company, at the request of the worker left the Company in
an extremely embarrassing situation. The Company felt it
could no longer trust the worker in a supervisory
position.
3. The Company is satisfied that the memo was written in
order to undermine a supervisory colleague. The Company
claims that the worker himself admitted to this at the
meeting of the 20th September, 1991.
DECISION:
The Court considers the employee in this case as a supervisor
must have been reasonably aware that if any action further than
the report in the logbook was required this should have been by
communication through his Company supervisor, and not through
correspondence with the client.
The Court is not convinced that the correspondence was written
with malicious intent to harm a fellow employee. The Court
concurs with the view expressed by the Rights Commissioner that
the act of the employee writing to the client was injudicious.
However, the Court considers, that whilst it was injudicious to
write to the client, and it was a serious act on the part of
the employee, it did not warrant the penalty imposed.
The Court considers the Rights Commissioner was right to state
that a final written warning would have been more appropriate
in the circumstances. Accordingly the Court considers the
complainant should be reinstated in his former position with
effect from the date of issue of this recommendation. The
recommendation of the Rights Commissioner should be amended
accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Tom McGrath
-----------------------
3rd March, 1992
A.Ni.S./N.Ni.M. Deputy Chairman
Enquiries concerning this Recommendation should be addressed to
Ms. Aoibheann Ni Shuilleabhain, Court Secretary.