FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IRISH SOCIETY OF AUTISM (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation 830/98GF.
BACKGROUND:
2. The Irish Association of Autism operates a residential facility in Dunfirth for 37 adults with autism. The worker commenced employment with the Society on the 26th of July, 1988 as a co-worker. He was subsequently assigned to the duties of co-ordinator with supervisory responsibilities for three residents.
The Society claims that the worker was negligent in his duties on a number of occasions during 1998. He was subsequently suspended from duty, demoted to co-worker and issued with a final warning as to his future conduct. The Society consider his actions as gross misconduct.
The Union rejects the allegation of gross misconduct and claims that the Society's decision to demote and issue the worker with a final written warning was a gross misuse of the disciplinary procedures.
The dispute was the subject of a Rights Commissioner hearing which took place on the 12th of January, 1999. The Rights Commissioner recommended as follows:-
"Ihave given, very carefully, consideration to this case and I have decided that the Society had good reason for concern following receipt of the complaint. I am satisfied that they conducted an adequate investigation of the circumstances before deciding on the disciplinary action. However, on the basis of the amassed information, I believe that the penalties must be appropriate to the offence.
While I accept that the claimant was wrong to a considerably degree, I feel the penalty was too harsh. He had a good record over 12 years and that has to be taken into account. I am recommending that he be restored to his position as co-ordinator within 2 weeks of receipt of the recommendation."
UNION'S ARGUMENTS:
3. 1. There is no case to support a charge of misconduct against the worker. Management's behaviour and actions have been excessive and vindictive.
2. Management's conduct has created concerns among other staff members and has damaged the employee/company relationship.
3. The worker has maintained a clean disciplinary record for over twelve years. He is a committed and motivated worker and management's unfounded allegations of neglect have been deeply hurtful to him.
4. The Union is seeking the withdrawal of all disciplinary action against the worker, his restoration to the position of co-ordinator and financial compensation.
MANAGEMENT'S ARGUMENTS:
4. 1. Management's confidence and trust in the worker has been seriously undermined.
2. The Rights Commissioner failed to take into account the ethos of the Society and the senior position of responsibility held by the worker.
3. The Society could have dismissed the worker because of his gross misconduct but took cognisance of his employment record over the past twelve years.
4. Management request that the Court set aside the Rights Commissioner's recommendation and to uphold the Society's disciplinary sanctions.
DECISION:
The Court has carefully evaluated the submissions of the parties in this appeal.
It is noted that the Rights Commissioner was satisfied that the Society had good reason for concern following receipt of the complaint which led to the imposition of disciplinary action against the claimant. The conclusion of the Rights Commissioner in that regard has not been challenged. The Court accepts that the sanction imposed by the Society was, in the circumstances, too harsh but not to the degree found by the Rights Commissioner.
It is the decision of the Court that the claimant should be restored to his original position with effect from the date of this recommendation. It is also the decision of the Court that the final written warning issued should be replaced with a written warning (i.e. the penultimate stage
in the disciplinary procedure) effective from the date on which the final written warning was originally imposed. Furthermore, the Court believes that the employee, in his own interest, should be counselled as the standards expected of him in his position of responsibility.
Signed on behalf of the Labour Court
Kevin Duffy
10th May, 1999______________________
L.W./D.T.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.