AD0051

SUBJECT:
1. Appeal of Rights Commissioner's Recommendation IR369/00/JH concerning appeal against disciplinary action.


BACKGROUND:

2. The worker concerned is employed by the County Council as a driver in its Refuse Department. On the 2nd of February, 2000, an incident took place following which it was alleged that the worker had assaulted a colleague. An investigation took place following which the County Council imposed the following sanctions on the worker:-

(i) Suspension without pay for one week.

(ii) The worker to revert to number 1 relief driver on his return to work following his
suspension.

(iii) Issued with a final warning that any re-occurrence of this behaviour would result in
his dismissal.

The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's Recommendation is as follows:-

"On the basis of the evidence available and taking into account the submissions made at the hearings and for the reasons set out in the conclusions above, I recommend as follows:-


(i) That the worker is restored to a driving route. It is a matter for the Council to
arrange a suitable slot for the worker and the Union must co-operate with the
necessary arrangements. Obviously it is not in the interests of either
employee in this dispute to be working together. The Council should be assisted
in this matter by those employees who signed a petition saying that they
never had any problems working with employee B in the past.

(ii) The warning on the worker's file should be removed with immediate effect.

(iii) The Council should put proposals for the introduction of a policy against any type of harassment and the procedure for making and investigating complaints to the
Trade Unions within six weeks of the date of issue of this recommendation. Adequate training should be put in place to support the policy once agreed.

The worker was named in the recommendation."

The Rights Commissioner's Recommendation was appealed by the County Council to the Labour Court on the 14th of June, 2000 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 22nd of September, 2000.


UNION'S ARGUMENTS:

3. 1. The Union is concerned that management failed to address the worker's complaints of harassment and bullying and has failed to implement any policy on bullying or how workers should behave in the workplace.

2. Prior to the incident in question, the worker was intimidated by the other worker concerned over a long period of time. During the investigation into the matter, the worker admitted striking a colleague under duress as a result of being harassed and bullied.

3. The worker is not an aggressive person and prior to the 2nd of February, 2000 he had a good employment record.

4. The worker has suffered considerable stress since the incident. His family life has been disrupted and he has attended counselling as arranged with the County Council. He was not totally to blame for the incident.

5. The Union considers that the Rights Commissioner fully investigated the matter and in the circumstances her recommendation is fair and should be accepted by the County Council. It would be unfair not to remove the warning from the worker's record in view of the stress he has suffered.


COUNTY COUNCIL'S ARGUMENTS:

4. 1. The assault by the worker was a potentially dismissal offence.

2. The Council took the worker's exemplary record into account when deciding the
disciplinary action.

3. The worker has been restored to a driving route as a regular driver.

4. The Council feel that removing the warning from the worker's file would send out
the wrong message entirely regarding the committing of an assault.

DECISION:

The Court fully accepts the County Council's contention that assault by one employee upon another constitutes serious misconduct normally warranting dismissal. However, in this case the Rights Commissioner found that there were exceptional extenuating circumstances. The Court agrees with that conclusion.

In this particular case the Court does not believe that the full implementation of the Rights Commissioner's Recommendation could be interpreted as minimising, in any future cases, the seriousness of the type of misconduct involved or the appropriateness of a severe sanction up to and including dismissal. For this reason the Court has decided to uphold the Rights Commissioner's Recommendation.

The Court notes that in the course of the internal disciplinary procedures, at the Rights Commissioner investigation and again in its submission to the Court, the Union made serious allegations of ongoing harassment and bullying of the claimant by a fellow employee. When the County Council sought to investigate these allegations it was met with a complete lack of cooperation on the part of employees who were allegedly witnesses to the conduct complained of, bordering on obstruction of the investigation.

The Court would urge both parties to cooperate fully with each other in putting in place an agreed policy against any type of harassment (as recommended by the Rights Commissioner in point 3 of her Recommendation). The Court would also urge all concerned to cooperate fully in any future investigation of any breach of such a policy. The Council's appeal is disallowed and the Recommendation of the Rights Commissioner is upheld



Signed on behalf of the Labour Court



Kevin Duffy
29 September, 2000______________________
FB/CCDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.