FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : THE NATIONAL GALLERY OF IRELAND - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation Ir3820/01/GF.
BACKGROUND:
2. The appeal concerns two workers who commenced employment in 1988 and 1992, respectively, in the general attendant grade in the gallery. Both workers were part of the "Picture Hanging Working Party" now known as the Art Handling Team. The Union contends that from 1995 the workers were, from time to time, taken from their art handling duties and moved to room duties and that these moves became such a regular feature that the workers ultimately, as a protest, withdrew from art handling on three occasions, the final one being in May, 1998. Management responded by writing to both workers stating that the Gallery had accepted their resignations with effect from 1st May, 1998. The Gallery subsequently advertised these positions and Management also decided to restructure and formalise the Art HandlingTeam as a designated, trained, and dedicated team. Previously workers had to alternate between art handling and room duties as the needs of the Gallery required. Both workers applied for the posts but were not successful. The Union subsequently claimed that the workers were unfairly treated and that they did not resign their posts. The Union claimed that the workers should be reinstated and compensated for loss of earnings. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 10th May, 2001 the Rights Commissioner issued his findings and recommendation as follows;
" .............I can only conclude that the management were obliged to review the operation in an effort to provide an efficient service. The "withdrawal of services" was seriously interfering with the running of the gallery, therefore it was not unreasonable to interpret the withdrawal as a final refusal to perform these duties. The manner in which the review was carried out could not be described as being akin to a constructive dismissal, nor was it lacking in natural justice. The claimants actually applied for jobs in the new arrangements.
The claim for reinstatement and compensation fails."
On the 5th June, 2001 the Union appealed the recommendation to the Court. The Court heard the appeal on the 3rd October,2001.
UNION'S ARGUMENTS:
3. 1.The claimants withdrew their services on three occasions. Their protest was related to the poorly managed running of the gallery's art handling operation and the workers' regular removal from art handling duties and being placed on room duties which resulted in backlogs and a poor art handling delivery of service. It was wrong and unfair to apportion blame to the claimants. The workers had a genuine grievance and did their utmost to resolve the issue at local level. They were given assurances by management that the issues would be resolved. However, their grievances were ignored.
2.Management did not challenge the workers' withdrawal of their service on the three occasions nor seek a meeting with the Union on the issue. The workers did not resign from the Art Handling Team as they were competent and enjoyed their work. However, they wished to be left to do this work without disruption.
3.The workers were removed from their jobs and were disciplined for their actions. Management did not adhere to the appropriate disciplinary procedures in its treatment of the workers.
4.The workers applied for the advertised jobs because they feared that if they did not apply it might be construed as confirmation of their "resignation".
- 5.The workers believed that, as a result of their complaints and protest actions, the function of art handling was at last being formulated into a dedicated team to get on with the job uninterrupted. The workers believed that, given their experience and expertise, their applications were a formality and they would be returned to the Art Handling Team.
6.As a result of their removal both workers suffered a substantial loss of earnings as well as a more social roster. The Union seeks the reinstatement of both workers to their original posts on the Art Handling Team. With the expansion of the gallery and the opening of the new Clare Street wing it can be done without impacting on the current incumbents. The workers should be compensated for loss of allowances and overtime from May. 1998 to date.
MANAGEMENT'S ARGUMENTS:
4. 1.Prior to 1998, all attendants were eligible for membership of the Art Handling Team. It was not unusual for attendants to signify verbally that they were resigning from the Team. The two claimants frequently approached their supervisor requesting to be returned to room duties as they wished to leave the Art Handling Team because of their frustration with being on art handling duties and also being asked to perform room duties. Management had to call on the workers to do room duties because it was essential that the rooms be kept open at all times. There were staff shortages and high levels of sick leave in the Gallery. The workers' supervisor also undertook room duties because of the situation. The supervisor was very frustrated with the workers withdrawal of their services and felt the work was suffering as there was no team spirit and both claimants were unhappy.
2. Because of their very clear wish to be released from art handling duties management wrote to the claimants on 6th May, 1998 accepting their resignations having being informed by the senior attendant of their wish. The claimants did not respond to the letters or suggest, either orally or in writing, that management was wrong to accept their resignations.
3. During interviews for the advertised posts both workers were questioned about their resignations from the working party and their reasons for applying for the posts. Neither disputed the fact of their resignation. There were subsequently no complaints regarding the validity or fairness of the interview process or outcome. There were seven applicants for the posts. The two successful candidates, who brought important skills to the roles, are working well with their supervisor as part of a team. There are no vacancies and none are envisaged in the future.
DECISION:
Having listened to all the arguments put forward by both sides the Court concurs with the findings and decision of the Rights Commissioner's recommendation. Therefore the Union's appeal is disallowed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th October, 2001______________________
TODDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.