FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HEALTH SERVICE EXECUTIVE/NORTH EASTERN AREA - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-037792-IR-05-DI.
BACKGROUND:
2. The Claimant in this case is employed as a porter in Cavan General Hospital. In November 2002 Mr. X a worker colleague lodged a formal complaint of bullying and harassment by a number of co- workers and he cited specific incidents which he classified as intimidation by the claimant. As there were direct links between the allegations made against the Complainant and another investigation underway at that time Management sought to extend the terms of reference of the second investigation to include Mr. X's complaint. A formal investigation into Mr X's complaints were conducted and found on the balance of probability"it is as likely than not that the matters complained of by the complainant in respect of his encounter in the porters room at that time occurred, but that the claimant had not discharged the burden of proof necessary to substantiate the complaint"
On the 30th September, 2005, following a local appeal to the Deciding Officer, the complainant was subject to disciplinary sanction, consequent to the findings of the formal investigation. The Complainant was notified of the repercussions of failing to comply with the sanctions imposed. Further disciplinary sanctions were imposed in November, 2005 after the Claimant failed to meet the requirements as set out in a letter dated 30th September, 2006. As the Claimant did not accept the decision of the investigation his solicitor wrote to Management on the 11th October, 2005 confirming the Claimant's intention to appeal the decision to a Rights Commissioner for investigation and recommendation. Management felt that it had no option but to carry out its intentions to increase the sanctions imposed as set out in its letter of 30th September, 2005. The Rights Commissioner hearing took place on the 25th January, 2006. On the 28th March, 2006, the Rights Commissioner issued his recommendation as follows:
“Having considered the submissions made by the parties I find that the flaws in the investigation complained of by the claimant were not of a significance that would result in the report being deemed to be unreliable. I therefore find against this element of the claimant’s complaint.
- On the 18th October, 2005 the claimant’s solicitor notified management that the claimant wished to appear in full the findings of the investigation and the sanction. I believe that no further disciplinary sanctions should have been imposed on the claimant pending the outcome of his appeal. I therefore recommend that the sanctions to be imposed on the claimant be as set out in the Deciding Officers letter of the 30th September 2005 and the respondent should make good any loss the claimant suffered during the period of his suspension”.
- On the 19th April, 2006 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 5th October, 2006.
- On the 19th April, 2006 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 5th October, 2006.
UNION'S ARGUMENTS:
3.1 The Claimant fully co-operated with the investigation process. The findings of the Report did not uphold the primary alleged complaint made by Mr. X.
2. The findings of the Report did uphold the secondary alleged complaints made by Mr. X which he introduced during the investigation process. The Complainant contends that this decision by the investigation team was unreliable because it was based on a flawed process, as had been identified in the context of the submission to the Court. The issues of (a) Witness D withdrawing in writing the evidence he gave to the investigation, (b) Witness C indicating that his evidence to the investigation team was not accurately reflected in the content of the Report and (c) Witness B gave evidence to the investigation team that he was on duty on the night in question while it was shown that Ms Y was on duty on the night in question.
3. Management has let this matter go unchecked and leaves the Complainant very vulnerable at work. The Union contends that the Chairman of the investigation team contradicted his own report the day after it was signed and this supports the Claimant's contention of a flawed process.
4. The Complainant contends that the disciplinary sanctions which have already been imposed on him have been unjustified and unwarranted in the circumstances of the case.
MANAGEMENT'S ARGUMENTS:
4.1 In November 2002, a complaint was submitted to Management by Mr. X against the Claimant and other unnamed members of staff. Due to circumstances outside the control of Management a final report of the investigation did not publish until November, 2004.
2. At all times the claimant was afforded due process, the right to representation, the right to respond to findings of fact prior to submission of the final report and the right to question findings of the report and to obtain clarifications from the Investigation team.
3. At the Rights Commissioner's hearing the claimant sought to imply that the findings of the investigation process were flawed as the witness was not actually rostered for duty that day. What the claimant cannot refute is that the Night Superintendent did overhear a telephone call when it was transferred to her office and transmitted on a hands free system in the presence of herself and Mr. X. Any claim of collusion between the parties is pure conjecture and does not stand up to scrutiny
4. It should be noted that the Rights Commissioner gave detailed consideration to all the Complainant's concerns and could not concur with his views. Unless the Claimant can now present additional information to support his view his claim must fail.
5. As to the Complainant's argument that his concerns have not been addressed, Management would like to point out that these issues have nothing whatsoever to do with the complaint lodged by Mr. X nor the subsequent investigation process and the Complainant should deal with this through the Grievance Procedure for the Health Services, a procedure he is familiar with. To date he has failed to exercise this option.
6. Management contends that it acted in a fair and reasonable manner and that the disciplinary sanction should stand.
DECISION:
The Court has considered the submissions of both sides to the Union’s appeal of the Rights Commissioner’s recommendation, which dealt with an investigation into complaints made against a Porter in Cavan General Hospital in November 2002. The appellant appealed (a) the findings of the Investigation and (b) the resulting disciplinary sanction.
The Court is of the view that the investigation carried out, despite being very long drawn out for a number of reasons, was thorough and exhaustive into the allegations made. The Court does not accept that the appellant has established any valid grounds to overturn its methodology or findings. The Court is satisfied that all matters brought to their attention were given consideration by the Investigation Team and the conclusion which was reached on the balance of probabilities was appropriate in the circumstances.
Consequently, the Court concurs with the findings and recommendation of the Rights Commissioner and sees no valid grounds for varying his recommendation.
Accordingly, the Court upholds the Rights Commissioner’s recommendation and the appeal fails.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th October, 2006______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.