FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SUPERVALU CHILL (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR15097/03/MMG
BACKGROUND:
2. The claimant sought a hearing before a Right Commissioner wishing to challenge the outcome of an internal investigation into his complaint of bullying and harassment. The Claimant had a protracted Industrial Relations matter with the Company surrounding absences due to illness, which was later diagnosed. A number of warnings under the disciplinary procedure were expunged from his record following a hearing before a Rights Commissioner in June 2002. In August 2002 the claimant sought redress with regard to a period which he perceived as one where he was bullied and harassed and/or intimidated around Christmas time 2001, during a particular roster he was working which resulted to him becoming ill. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 2nd March, 2004, the Rights Commissioner issued his recommendation as follows:
“In assessing, all of the evidence presented both written and oral, I do not find that there is a case of bullying and harassment to be answered.
I do find though that some residual matters may be blocking the normal good relationships on site. I would recommend therefore that the company arrange for a conciliatory meeting at local level with the intention of achieving closure of this matter, such that the future employment period for the claimant may be enjoyable and carry no potential for future concerns re his treatment".
On the 11th March, 2004 the Union appealed the Rights Commissioner's recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. They are requesting the Labour Court to set aside the Rights Commissioners recommendation and replace it with a recommendation that addresses the workers belief that Management's operational requirement over the period in question was too onerous and their refusal to acknowledge this represents at least unfair treatment. A Labour Court hearing took place on the 14th April, 2004.
UNION'S ARGUMENTS:
3.1. The worker was suffering from a medical complaint which the Company were aware of. He requested exemption from doing a Saturday shift 22nd December, 2001(which was compulsory) and requested a swap to a January roster. He indicated that he would not physically able to do 8 days running. As he was on a written warning he felt obliged to attend. Subsequently he fell ill over the Christmas period which caused distress and upset to his family.
2. The worker feels aggrieved at the decision of local Management to either ignore or deny his request for an exemption. He believes the 'tour of duty' required of him was too onerous. He believes that local Management acted in an unreasonable manner in not taking the circumstances of his particular illness into account.
3. An acknowledgement by Management and a gesture to the worker for the distress caused could settle this.
COMPANY'S ARGUMENTS:
4.1. The Right's Commissioner fully grasped the complexity and nuance of this complaint and his findings. His findings are correct.
2. The worker's complaint of bullying and intimidation were investigated thoroughly and in detail and fully processed in accordance with the Company's procedures.
3. The Company has a legitimate right to monitor absences levels and reduce them were possible. The worker in his original complaint has acknowledged the Company's right to do this.
4. A considerable amount of time and effort has been expended at various levels of the Company investigating and considering evidence in this case.
5.The worker has not been treated unfairly, nor has he been bullied or harassed and this is acknowledged by the Rights Commissioner.
DECISION:
The Court believes that the Company should acknowledge that in the particular week prior to Christmas their application of the working arrangements were insensitive to the claimant's medical condition. This should be expressed directly to he claimant at a meeting of reconciliation.
For his part the claimant should withdraw his claims of bullying and harassment against the managers concerned.
The Rights Commissioner's recommendation is modified accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
20th April, 2004______________________
JBChairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.