FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IBM (REPRESENTED BY ARTHUR COX SOLICITORS) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners Recommendation IR12219/03/GF.
BACKGROUND:
2. The worker was employed by the Company as a production operator in September, 2000. The Company's business cycle is such that there are significant peaks of production in the run up to the end of each quarter. This results in substantial overtime at these times. Although overtime is not compulsory, there is an expectation that it will be worked by manufacturing employees unless there are substantive grounds for non-availability.
The worker made a number of complaints. He claims that he was bullied by his manager, resulting in physical and emotional injuries. These injuries were compounded when he attempted to seek help from his second-line manager who asked him to sign a false statement. The worker believes that his involvement in seeking Union recognition in the Company is partly to blame for his problems.
The Company denies the allegation. Its case is that absenteeism problems arose with the worker shortly after his commencement, resulting in a verbal warning on the 8th of January, 2002. The Company believes that this is the cause of difficulties between the worker and his manager.
The worker had a meeting with his second-line manager on the 15th of January, 2002, in which he raised 3 issues (details supplied to the Court). One of these involved a threat by the manager against persons who declined to do overtime at the end of December. The second-line Manager investigated the allegations and concluded that the manager had not acted improperly.
The worker referred his case to a Rights Commissioner. A number of dates were adjourned before a hearing took place on the 8th of August, 2003. The Rights Commissioner issued the following recommendation on the 18th of September, 2003:
Background
"The case had been listed on two previous occasions and adjourned on both occasions. After the parties had signed attendance forms for the hearing the claimant indicated he did not wish to proceed."
Findings and Recommendation
"In view of the claimant's wish not to proceed I am recommending that the case be struck out."
The worker appealed the recommendation to the Labour Court on the 22nd of October, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 19th of January, 2004.
WORKER'S ARGUMENTS:
3. 1. The worker has been bullied by management because of his views on overtime and trade unions.
2. The worker feels that he has been unfairly disciplined. Most of the absenteeism was as a result of stress suffered at work.
3. The Company has failed to provide a safe workplace.
COMPANY'S ARGUMENTS:
4. 1. The worker was not bullied or threatened by his manager.
2. The second-line manager did not demand that the worker sign a false statement or refuse to give him a copy of the statement, as claimed
3. The worker had a long history of absenteeism and sickness. The verbal warning was fully justified. The warning has long been removed from the worker's file.
DECISION:
As a preliminary point, the Court was requested by the Company's representatives not to entertain this appeal by the worker as it was contended that he did not lose on the merits of his case before the Rights Commissioner but had, in fact, withdrawn his case which was accordingly struck out. The worker stated to the Court that due to a series of events, related mostly to his lack of representation and health difficulties, the Rights Commissioner had invited him to withdraw his case. The worker submitted to the Court that he did not, in fact, withdraw the case.
At the hearing of the appeal, the Court noted that the worker wished to pursue additional claims as part of the hearing. It was pointed out to the appellant that, procedurally, the Court must confine its hearing to an appeal of the issues raised with the Rights Commissioner. Additional matters could potentially be the subject of a separate claim. Having considered the submission of the appellant, it is clear that the redress sought at the hearing relates to these new claims. Therefore, the Court must refer back to the submission made when the claimant was represented by a Union at the original Rights Commissioner's hearing.
Preliminary issue
The Court considered the oral and written submissions of the parties to the preliminary point and to the substantive issue of the claim as submitted to the Rights Commissioner. Having considered these matters, the Court has decided that the appeal before the Court should be heard and that the Court should adjudicate on the appeal of the substantive issue as raised with the Rights Commissioner.
Disciplinary Warning
The Court is satisfied that the evidence presented does not substantiate the claim that the worker was unfairly disciplined when he received a verbal warning on 8th January, 2002, for the taking of unauthorised leave and for poor timekeeping.
However, the Court is of the view that the internal appeals process, used to appeal the verbal warning, was unsatisfactory and poorly handled. To address this, the worker claimed that the disciplinary warning should be dropped. The Court notes that the warning has since lapsed and recommends that it should be removed from his file.
Overtime Working
The worker claimed that he had suffered stress related problems due to the Company's unreasonable demands to work overtime which, he maintained, were in conflict with his statutory rights under the Organisation of Working Time Act, 1997, and with the Health, Safety and Welfare at Work Act, 1989.
The Court notes the requirement contained in the IBM Employee Handbook that "every employee is expected to work overtime when it is requested" and concludes that, based on the number of hours actually worked prior to his claim, this requirement to work overtime was not an unreasonable demand.
The evidence produced by the Company indicated that the hours worked by him and his colleagues were within the limits permitted by the Organisation of Working Time Act, 1997, Act.
Allegation of Bullying and Harassment
With regard to his allegation of bulling and harassment by a member of management, the Court is not satisfied that sufficient evidence has been adduced to substantiate these claims.
The worker has alleged that he has been suffering from stress for some time and is of the view that the demands made on him by the Company, coupled with the disciplinary warning were the reasons put forward for his condition. The Court recommends that the Company should take measures necessary to assist his reintegration into the workforce.
Decision
In conclusion, the Court overturns the Rights Commissioner's recommendation and varies it in accordance with the above.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th March, 2004______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.