FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KERRY COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation RC378/97.
BACKGROUND:
2. The dispute arose following an incident in January, 1997 when the worker, a general operative, removed a dumper for a period after normal working hours, from the Council's yard adjacent to the Castleisland area office. The Union claims that the worker had approval to borrow the dumper, in line with well-established practice. Shortly afterwards, however, the Garda� visited the worker's home in connection with removal of the dumper. The Union claims that the involvement of the Garda� was unnecessary and that since the incident, the worker has been victimised by the Council and has been required to work unreasonably far from his home.
The Council's position is that the worker removed the dumper without authorisation and it rejects the contention that he has been redeployed and further rejects the notion of any employee seeking to determine his/her own duties. The Council added that, following an earlier, unrelated incident, the Garda� had indicated that they wished to be informed if similar events occurred subsequently.
The matter was investigated by a Rights Commissioner who found that what would have been a straightforward disciplinary measure was changed significantly by the involvement
of the Garda� by the Kerry County Council. He added that no evidence had been presented to him which would have justified their involvement in the case.
He recommended, in August, 1997, that:
(1) the Council should confirm that it is not normal policy for any member of its staff to involve the Garda� in straightforward disciplinary issues unless it is clearly necessary to so;
(2) the Council should seek to find in the coming months a more suitable position for the worker;
(3) the Council should offer, and the worker and the Union should accept, a once-off ex gratia payment of £250 to cover any financial loss that the worker had suffered or might suffer as a result of these events;
(4) both parties should pledge maximum co-operation with each other in all aspects of their working relationship;
(5) the Union should formally confirm their acceptance of the Council's right to redeploy their employees in the normal way.
The Union appealed against the Recommendation, on the 3rd of September, 1997, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal, in Tralee, on the 18th of December, 1997.
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner failed in a material way to address fully the wrongdoing perpetrated by Kerry County Council on the worker and has failed to deal with the outrageous behaviour of the worker's Superior Officer in Kerry County Council in involving the Garda� in an internal matter and the callous behaviour of the Council in failing to restore him to the work he was normally carrying out before the incident arose.
2. Up to and including the present, the Council has consistently refused to reinstate the worker fully on the job which he was engaged on and which he was previously carrying out to the Council's complete satisfaction.
3. The £250 recommended by the Rights Commissioner is totally inadequate compensation for him for the losses and embarrassment caused to him.
4. The Rights Commissioner, in his Recommendation, goes some way towards recognising that the worker was wronged. It is understandable that he might have concerns about conceding to the worker on the issue of his redeployment. However, given the Council's attitude to the worker and the fact that he should have first call on any work in the Castleisland area, he should be awarded substantial compensation for his losses and the inconvenience caused to him and his family.
COUNCIL'S ARGUMENTS:
4. 1. Having regard to the recommendations of the Rights Commissioner, which are in the worker's favour, it is difficult to understand the conditions now being sought by him in this case. The Council has sought to resolve this difficulty and has displayed as much flexibility as it possibly can. The Council's letter of the 10th December, 1997 clearly demonstrates the extent of flexibility but regrettably the Council now considers that its goodwill is not being reciprocated.
2. The Council cannot accept that any employee should seek to determine his/her own work duties and it is essential for the efficient and effective operation of the Council's Services that the right to deploy or re-deploy staff to work normally associated with a particular grade should at all times rest with management. If this principle is not accepted, it would lead to a complete breakdown of working practices and the structures which have been put in place to ensure effective service delivery. It would also lead to inefficiencies and an escalation of costs.
3. The Council has continued to pay sick-pay to the worker who has been on sick leave since July, 1997. That he has received sick-pay beyond the 12 weeks maximum provided for in the sick-pay scheme should be taken as a further gesture of goodwill on the part of the Council in an attempt to seek a resolution to his dispute.
DECISION:
At the hearing the County Council clarified that its letter of 10 Dec., 1997, meant that "the claimant would not be excluded from dumper work and would be allocated his duties as near to Castleisland as possible having regard to the programme in place at the time".
Both sides agreed that it was Management's right to allocate work and to deploy staff as appropriate.
The Court, having noted the above, upholds the Rights Commissioner's Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
12th of January, 1998______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.