FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL IRISH BANK (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH BANK OFFICIALS' ASSOCIATION) DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR5826/01/FL.
BACKGROUND:
2. The worker joined the Bank in 1979. In 1999, he was promoted to the position of Package Business Manager, one of 5 in the area. In December, 1999, the Internal Audit Department produced a report which was critical of the Package Business Centre. In July, 2000, a Risk Asset Review (RAR) took place and all 5 managers failed. Shortly afterwards, the 5 managers received letters advising them that the Bank had taken disciplinary action against them in the form of a written warning. The worker appealed the warning through the Bank's internal process but was unsuccessful. The matter was then referred to a Rights Commissioner and a hearing took place on the 22nd of February, 2002. By that stage, the warning had been expunged from the worker's record. The Rights Commissioner's recommendation was as follows:
"I recommend that the employer pay €1,000 compensation to the claimant.
The claim for withdrawal or reduction in duration of the written warning fails."
The Bank appealed the recommendation (specifically the "monetary amount contained") to the Labour Court on the 10th of May, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 14th of August, 2002.
BANK'S ARGUMENTS:
3. 1. The worker was disciplined for contravening the Bank's lending policy. This could have potentially resulted in significant loss, thereby putting the Bank at risk.The written warning issued by the Bank was fully justified.
2. The Rights Commissioner found in favour of the Bank on the substantive issue. His perception that there was procedural negligence by the Bank at the internal hearing is incorrect. The worker was afforded every opportunity for natural justice.
3. The Union did not directly seek compensation at the Rights Commissioner's hearing. There is no justification for awarding the worker €1,000.
UNION'S ARGUMENTS:
4. 1. The Right's Commissioner concluded that "there were some shortcomings in the methodology that was employed by the Bank in this case". The Bank has not appealed against this conclusion.
2. The worker did suffer as a result of the appraisal in October, 2000. He was downgraded for the first time in his career which resulted in him receiving no bonus and a reduced increase in his salary.
3. The Union did seek redress from the Rights Commissioner although it did not mention a specific monetary loss.
4. The worker failed the RAR because of the enormous workload, lack of assistants and the inaction of higher levels of management following the earlier Internal Audit.
DECISION:
The claim before the Rights Commissioner was for a withdrawal or reduction of the written warning given to the claimant. It is not unusual for employees to seek to have such notices withdrawn or cancelled from their records, even though the period of such warnings has expired.
In such cases it can be appropriate to recommend that the warning be retrospectively removed from an individual's record.
In this case, the Rights Commissioner rejected the claim for withdrawal or reduction of the written warning, a decision the Court supports, and this should stand.
The Court, however, does not support the Rights Commissioner's recommendation for €1,000 compensation in this case.
The Court, therefore, upholds the appeal and amends the Rights Commissioner's Recommendation as above.
Signed on behalf of the Labour Court
Finbarr Flood
30th August, 2002______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.