FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CHORUS LEDP (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation No. IR17973/03/MR
BACKGROUND:
2. The Company, with its headquarters based in Limerick, is involved in the supply of multichannel television throughout Ireland. The Claimant commenced employment with the Company in February, 2000, as a Customer Service Representative at the Company's call centre. The dispute before the Court concerns a claim by the Union on behalf of its member in relation to a warning given and the alleged retention of inappropriate material on her file, following an incident in September, 2003. The Claimant is alleged to have left her workstation, gone to another department and approached a member of that department directly in relation to a work issue, which the Company contends that the Claimant is not authorised to do. The Union is seeking to have the warning and other inappropriate material removed from its member's personnel file.
- The matter was referred to a Rights Commissioner for investigation and Recommendation. His findings and Recommendation issued on the 10th October, 2005, as follows:
"Based on the evidence before me, I have concluded that, whatever frustration the claimant might have felt regarding the way some calls were being dealt with on the morning in question, her actions, even as described in her union's submission and by herself at the Hearing, were inappropriate and left her open to the imposition of disciplinary action.
The reality is that the claimant has not really disputed that she left her work station and went to another department without authorisation, even though the proper procedures for dealing with situations such as the one that had arisen that morning had previously been clarified for her. The various points made on her behalf by the union are, in my view, both technical and relatively minor. I am satisfied that these points, even when taken together, do not constitute grounds for me to overturn the Verbal Warning.
Accordingly, I now formally find that the company was acting fairly and reasonably when issuing a Verbal Warning in this case.
I propose to comment on only one of the technical points raised by the union, that the Warning was issued for a different issue than the one that the claimant's colleague had originally complained about.
I am in no doubt that any employer is entitled to consider the imposition of disciplinary action in relation to an issue that first comes to their attention during an investigation, even if that investigation had originally been regarding another matter. The only situation where such a principle might not hold would be one where some form of conspiracy or entrapment was involved, and I see no evidence that such was involved in this case.
As regards the retention of material on the claimant's file, I note the clear statement on this matter made on behalf of the company at the Hearing and I fully agree with it. If indeed any such material had been retained on the claimant's personnel file, clearly there was an obligation on the company to remove it forthwith and I trust that this has indeed happened.
As an additional assurance on this issue, the company should now agree to allow the claimant, on a reasonable basis, sight of the contents of her file if so requested by her. In addition, the company should confirm in writing that it will at all times abide by the policy enunciated at the Hearing. Such an approach would, in my view, be of mutual benefit to the parties.
Recommendation
In the circumstances, I now recommend that the claimant and SIPTU should accept that the appeal against the Verbal Warning fails. For their part, the company should confirm in writing their policy regarding the retention of material on personnel files and should allow the claimant, on a reasonable basis, sight of the contents of her file if so requested by her".
The worker was named in the Rights Commissioner’s Recommendation.
On the 28th October, 2005, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 22nd March, 2006.
UNION'S ARGUMENTS:
3. 1. The Claimant has been treated in a grossly unfair manner and the Court is requested to recommend that the warning be completely expunged from the Claimant's file. The investigation into the original allegation was never actually carried out but the matter was pushed hard by some members of management. The Union is of the belief that the Company set out to reprimand the Claimant regardless of any other outcome that may have arisen.
2. The Claimant had discovered, having viewed the contents of her personnel file, that information relating to representations by the Claimant in her role as Union Shop Steward made on behalf of other Union members had been placed on that file. This is considered wholly inappropriate and there is a danger that holding such information could be perceived as "case building" and could be read in conjunction with applications for promotion.
COMPANY'S ARGUMENTS:
4. 1. The Company acted appropriately in issuing a verbal warning to the Claimant for her recurrent actions in acting outside her role and responsibility of a Customer Service Representative. Such action was only taken following a full and thorough investigation.
2. The Court is requested to uphold the Rights Commissioner's Recommendation. The Company strongly contends that any concession of this claim by the Labour Court will have an adverse affect on the Company's ability to instigate disciplinary proceedings and would undermine the Company Disciplinary Procedure.
DECISION:
Having considered the extensive oral and written submission of the parties, the Court finds that, in all the circumstances of the case, the Rights Commissioner's Recommendation is fair and reasonable.
The Court therefore upholds the Rights Commissioner's Recommendation and rejects the appeal.
Signed on behalf of the Labour Court
Raymond McGee
13th April, 2006______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.