FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NORTHERN AREA HEALTH BOARD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation IR13390/03/GF.
BACKGROUND:
2. The worker concerned commenced employment with the Organisation in a full-time capacity in November, 1999. In August 2001 the worker applied for a post as a Care Attendant in Lusk Day Care Centre. A position was offered to her but she wrote to management stating that she was not in a position to take up the post offered.
In March, 2002 the worker applied for a post in Lusk Day Care Centre. In June, 2002 she transferred from her current place of work and commenced employment in the Day Care Centre. Her hours of work were regular, with no shift work, weekends or night duty. An erroneous contract of employment was issued to the worker and then withdrawn.
Subsequently the worker's hours of work were changed but remained regular. She was also required to work on the wards when she was not needed in the Day Care Centre. The worker felt stressed and harassed by the need to rotate between the wards and the Day Care Centre. Following a period of sick leave the employer referred the worker to the Occupational Health Service. In January, 2003 she transferred back to her original place of work.
The issue was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation which issued on the 1st of July, 2003 are as follows:
"I am sure there was considerable stress involved in the proposed transfer but I cannot decide it amounted to harassment. Thankfully, the situation has corrected itself due to the claimant's initiative. I feel common sense should prevail in letting the matter rest as it is."
The Union appealed the recommendation to the Labour Court on the 31st of July, 2003, in accordance with Section 13(9), of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 8th of January, 2004.
UNION'S ARGUMENTS:
3. 1. The worker transferred to the Day Care Centre on the understanding that she would work solely in the Centre.
2. The worker experienced stress and harassment when required to move between the Day Care Centre and the wards.
3. Attempts to resolve the situation locally caused the situation to deteriorate.
ORGANISATION'S ARGUMENTS:
4. 1.In April, 2002 the worker was issued an offer of appointment to Lusk Community Centre.
2. Following discussion with the Director of Nursing it was agreed that the worker would have regular working hours, with no shift work, weekends or night duty. The worker accepted the appointment and commenced in June, 2002.
3. Proper procedures were followed in referring the worker to the Occupational Health service.
DECISION:
In essence, what is at issue between the parties is a dispute as to the terms on which the claimant transferred to the Lusk Community Unit and certain ancillary issues related thereto. It appears to the Court that the more appropriate means of addressing those issues would have been through the normal grievance procedure.
However, the matter was referred to the Rights Commissioner by way of a complaint of bullying and harassment. Bullying is defined by the Code of Practice on the Prevention of Workplace Bullying (Health and Safety Authority, February, 2002) as follows:
"Workplace bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one person against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individuals right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but a once off incident is not considered to be bullying."
Harassment can be defined as :
"Harassment is any act or conduct including spoken words, gestures or the production, display or circulation of written words, pictures or other material, if the conduct is unwelcome to the employee and could reasonably be regarded as offensive, humiliating or intimidating."
The Court is not satisfied that the incidents complained of in this case could be described as either bullying or harassment as so defined. It appears that management were of the view that they were entitled to assign the claimant to duties other than the day centre and acted accordingly. The claimant was of the view that her duties were confined to the day centre. This misunderstanding could and should have been resolved through normal industrial relations channels.
The Court notes the Union's complaints concerning the issuing of an erroneous contract to the claimant and the manner in which management communicated with the Occupational Health Section in relation to the claimant. The Court accepts that both incidents caused distress to the claimant and that management should have apologised to the claimant as soon as the incidents were brought to their attention. Nonetheless they could not be construed as bullying.
In the circumstances the Court upholds the recommendation of the Rights Commissioner. Accordingly the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
12th January, 2004______________________
M.G.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.