AD9849

SUBJECT:
1. Appeal by The Union Against Rights Commissioner Recommendation No. IR 109/98 CW


BACKGROUND:

2. The appeal concerns a worker who was employed as an evening shift dispatch working foreman. The dispute arose out of an incident in which a female worker alleged that she had been subjected to obscene verbal abuse as she walked past the dispatch office in November, 1997. This was strongly disputed by the workers, including the claimant, who at the time were holding a meeting in the dispatch office. The Company initiated an investigation into the incident and found that the remarks were not directed at the female worker, and the issue was resolved satisfactorily. It was arising from the claimant's behavior during various aspects of the investigation (specifically where a brief work stoppage occurred) that the Company decided to discipline the worker and re-allocate him to another position, in February, 1998. The Union claimed that the worker had been unfairly treated and sought his reinstatement to his previous post. Management rejected the claim. The dispute was referred to the Rights Commissioner for investigation. On the 1st April, 1998 the Rights Commissioner issued his recommendation as follows:

"I recommend that the worker accepts his redeployment and that any financial loss is considered after six months and that his redeployment is subject to review after eighteen months."

(The worker was named in the Rights Commissioner's recommendation).

On the 7th May, 1998 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 9th September, 1998.


UNION'S ARGUMENTS:

3. 1. The workers were incensed at the allegation and the claimant did his utmost to assist in the subsequent investigation and resolution of the matter in which it was accepted that the workers at the dispatch office meeting were blameless. However, the investigation of the matter was handled in a most unsatisfactory manner by Management who behaved in an aggressive and abrupt manner. The claimant tried to calm the situation.

2. The incident led to a strong mood of discontent and dissatisfaction amongst the workers. This led to the work stoppage on Friday, 27th November. At this time the dispatch section sought a meeting with Management to discuss the situation. this was refused. When Management eventually met two representatives from the section, work was resumed.

3. The claimant was unfairly singled out for disciplinary action in the situation where the unofficial work stoppage occurred. He was accused of instigating discontent yet it was Management who mishandled the procedure in relation to the investigation of the allegation made.

4. It was unrealistic of the Company to expect that the dispatch foreman could deliver a return to work, when senior management were on the scene and refusing to meet with workers against whom allegations had been made.

5. The consequent demotion and compulsory redeployment of the worker is contrary to natural justice and the need for balanced and fair treatment.

6. If there was confusion as to the role required of the worker as dispatch foreman, his rights as a union member and his position as team leader, then it should be clarified and dealt with in a less draconian manner than the Company's approach. No other worker was disciplined and the Union feels that the worker was treated in an unjust and unfair manner.



COMPANY'S ARGUMENTS:

4. 1. The worker was disciplined by the Company for engaging in behaviour which in Management's view, was inappropriate having regard to his position with the Company at the time. i.e. Evening Shift Dispatch Foreman.

2. At the Rights Commissioner's hearing the worker did not deny the essential elements of the Company's case against him i.e.

1) That there was an irrevocable breakdown in trust between the claimant and his managers.

2) His absolute refusal to meet with the Operations Manager when requested to do so, and his refusal to return to work when directed to by the Operations Manager.

3) As a Foreman within the Department there was a responsibility on him
to lead by example and to demonstrate a consistent and orderly
approach to the resolution of problems. There was a total derogation of this duty by the claimant in his refusal to advise the employees involved in the stoppage to return to work.


3. The claimant sought to excuse this by pointing out that he was only acting as a spokesman for a group of aggrieved workers. Such an explanation is inconsistent with what the Company should reasonably expect of a foreman i.e. to lead by example and demonstrate a consistent and orderly approach to resolving problems.

4. In subsequent discussions with the Union the claimant was offered a similar position on days and he sought to retain his earnings. The Company went most of the way to meet this request and the worker initially accepted the offer. However, he subsequently rejected it against the advice of management and the union. 5. In the circumstances the Company treated the worker in a fair and reasonable manner and requests the Court to uphold the Rights Commissioner's recommendation.




DECISION:

Having considered the submissions of the parties, the Court finds that in the circumstances of this case, the Recommendation of the Rights Commissioner is reasonable and should be upheld. However, the Court believes that the applicant's redeployment should be reviewed at the end of 1998, rather than after eighteen months as recommended by the Rights Commissioner. The Court, therefore, amends the Recommendation accordingly.



Signed on behalf of the Labour Court




22nd September, 1998______________________
T.O'D./D.T.Kevin Duffy
Deputy Chairman


NOTE

Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.