Labour Court Database __________________________________________________________________________________ File Number: CD9634 Case Number: AD9630 Section / Act: S13(9) Parties: IRISH SOCIETY FOR AUTISM (Represented by THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - and - A WORKER;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation No. CW297/95.
Recommendation:
The Court concurs with the findings of the Rights Commissioner -
that the only indication that the worker was involved is that she
had the opportunity.
The Court, however, does not find any grounds have been put
forward to show that she was involved. In the light of the above,
the Court considers that the warning should be removed from her
record.
With regard to her return to duty, the Court notes the present
position.
The Court, given all the circumstances, does not consider that the
payment of compensation in this case is warranted.
The Court so decides.
Division: Mr McGrath Mr Keogh Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD9634 APPEAL DECISION NO. AD3096
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
IRISH SOCIETY FOR AUTISM
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
AND
A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
CW297/95.
BACKGROUND:
2. The worker has been employed by the Society at the Dunfirth
Community for Autism since 1989. The dispute concerns an
incident that occurred on Saturday, July 29th, 1995. The
worker was assigned to night duty in one of the houses in
Dunfirth - House 4. On Sunday morning, between 1.15 a.m. -
2.10 a.m., the worker went to House 3 to allow another staff
member to take a break. Later on the Sunday morning it was
discovered that 18 items of food had gone missing from House
3. 12 of the items were subsequently discovered in House 4.
The worker denies taking them. The Society decided that the
worker was the only person who could have removed the items.
The worker was suspended with pay from work for a week,
pending an investigation. Following a meeting at local level
on 21st August, 1995, it was proposed that the worker would
be reinstated to work on day duty. She was also to be issued
with a final written warning. The Union maintains that the
worker was innocent of any wrong doing and that no
disciplinary action should have been taken.
The worker was due to return to work on 11th September, 1995.
The Union informed the Society that unless the worker was
reinstated in her "old" job she was to go home. The worker
was assigned to different duties than previously and did not
return to work until 17th January, 1996. The Union is
seeking that she be paid for the period 11th September, 1995
to 17th January, 1996.
The dispute was referred to the Rights Commissioner and a
hearing took place on 20th November, 1995. The Rights
Commissioner's findings and Recommendation are as follows:-
Findings
"The only indication that the worker was involved is
that she had the opportunity. She has steadfastly
denied any involvement. I do not see any way in which
she could have benefited from the incident. I consider
it is important for the Centre that normal working
relationships are re-established as soon as possible. I
do not believe that the discipline imposed on the worker
is fully merited by the circumstances."
Recommendation
"I recommend that the worker returns to acceptable day
duties immediately and that the final written warning is
reduced to a written warning. I recommend that any
outstanding issues are subject to talks between the
Centre and SIPTU with a view to reaching agreements."
The Union appealed the Recommendation to the Labour Court on
24th January, 1996, in accordance with Section 13(9) of the
Industrial Relations Act, 1969. A Labour court hearing took
place on 28th March, 1996.
UNION'S ARGUMENTS:
3. 1. The worker was not involved in anyway in the removal of
the food items. She had no reason to take the items as
there was no shortage in House 4. Also, the 12 items
were not hidden in any way. She admitted that she had
no explanation for what happened. Having the
opportunity is not evidence of guilt, as the Society has
indicated.
2. The Union clearly pointed out at the meeting on 21st
August, 1995, that the worker should return to her
former duties, as otherwise an implication of guilt
would be created. The Society did not disagree with
this at the time but, on her return, the worker was
assigned to different, and lesser, duties for which she
was not medically fit.
SOCIETY'S ARGUMENTS:
4. 1. The worker was the only person who had the opportunity
to remove the food items. The Society has explored
every alternative possibility before coming to the above
conclusion. The worker has no explanation for what
happened.
2. The final written warning was issued as a result of a
previous incident, in February, 1995, when the worker
was issued with a verbal warning. At the meeting on
21st August, 1995 the worker agreed to return to work on
day duties. However, the worker subsequently refused to
return until January, 1996.
DECISION:
The Court concurs with the findings of the Rights Commissioner -
that the only indication that the worker was involved is that she
had the opportunity.
The Court, however, does not find any grounds have been put
forward to show that she was involved. In the light of the above,
the Court considers that the warning should be removed from her
record.
With regard to her return to duty, the Court notes the present
position.
The Court, given all the circumstances, does not consider that the
payment of compensation in this case is warranted.
The Court so decides.
~
Signed on behalf of the Labour Court
17th April, 1996 Tom McGrath
C.O'N./D.T. _______________
Deputy Chairman