FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OUR LADY'S HOSPITAL (REPRESENTED BY HSE NORTH EASTERN AREA) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Of Rights Commissioner Recommendation R-035369-IR-05/GF.
BACKGROUND:
2. The worker concerned has been employed as an Attendant for the Hospital for some 32 years. On the 29th April, 2004 an incident occurred which led to an investigation under the Dignity at Work Policy for the Health Services. As a result of that investigation the worker was removed from his position and assigned to outdoor duties from January, 2005, where he is currently working under protest.
In February 2005 the worker appealed the severity of the imposed sanctions. The appeal was heard by the Director of Human Resources who informed the worker that he did not intend to alter the original decision.
The issue was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 28th October, 2005 as follows:-
“I recommend that he be restored to his position from 1st March 2006 and the warning be removed from his work record after 12 months.”
Management appealed the recommendation in so far as it referred to the workers reinstatement, to the Labour Court on the 22nd November, 2005 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 26th July, 2006, the earliest date suitable to the parties.
MANAGEMENT'S ARGUMENTS:
3. 1. There is an onus on the Employer to ensure, in so far as is reasonably practicable, that the workplace is safe and free from all forms of bullying, harassment and sexual harassment.
2. The incident in question was a very serious incident and the impact on the victim was considerable, causing her significant stress leading to sick leave.
3. Management do not believe objective grounds exist to support a decision to return the worker to indoor duties within the hospital.
UNION'S ARGUMENTS:
4. 1.The Union contend that the discipline of redeploying the worker was excessive and is unacceptable to him.
2. The Union on behalf of the workercontend that he is not working in the same department of the hospital, is not rostered on at the same time as the victim and that therefore redeployment is not required.
DECISION:
The Court has given careful consideration to the submissions of the parties to this appeal.
The Rights Commissioner accepted that the procedures followed by the Employer in the investigation of the complaints against the Claimant were fair and adequate. The Rights Commissioner also proceeded on the basis that the Claimant was guilty of the misconduct alleged against him. These findings of the Rights Commissioner have not been appealed. Accordingly, the Court must proceed on the basis that the only matter at issue is the appropriateness of the sanctions imposed.
The Court is satisfied that the misconduct for which the sanctions were imposed (sexual harassment of a colleague in the nature of a sexual assault) is a matter which must be viewed with the utmost seriousness. In that regard the Court does not accept that the sanctions imposed were disproportionate or excessive. Accordingly, the Court cannot concur with the Recommendation of the Rights Commissioner that the Claimant be restored to his previous duties.
To that extent the Recommendation of the Rights Commissioner is set aside. The Court is, however, of the view that the Claimant's position should be reviewed in 12 months from the date of this Decision and that the possibility of restoring him to indoor duties be considered at that time.
The Court so decides.
Signed on behalf of the Labour Court
Kevin Duffy
9th August, 2006______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.