FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal Of Rights Commissioner's Recommendation R-035330-Ir-05/Mmg
BACKGROUND:
2. The issue involves a claim by a worker that the Company has refused to allow him fair competition in relation to transfers and that they have refused to properly hear his grievance under the Company's agreed Grievance Procedures. The worker was an employee at the Company from 1974 until October 2005. He sought a transfer on a number of occasions from 1987 onwards. All were unsuccessful. The worker contends that this is a result of a campaign against him by management within the Company.
The Company rejects this, citing the fact that the worker was interviewed for a number of posts including being offered a transfer to Drogheda. Under the Company's Grievance Procedures a decision must be given by Senior Management within a period of ten working days unless an extension is applied for. No extension was applied for in this instance and the Worker did not receive a decision for over nine months. The Company have highlighted that the reason for this delay was the agreement of both sides to find a suitable person to hear the grievance. It was difficult to do so and the Company apologised to the Worker for the delay. The Grievance hearing took place on 7th October 2005.
The matter was referred to the Rights Commissioner for investigation and recommendation. On 1st September 2006, the Rights Commissioner issued his recommendation as follows:
"I am prompted to form the opinion that the Worker, in his own right, genuinely feels the grievance as portrayed but I find it unreasonable to expect that this be upheld as the core issue of his employment with the respondent company.
As I believe that resolution and closure are paramount for both parties in this matter I recommend that as a goodwill gesture the company would make an ex-gratia award of €2,500 to the worker. The worker should accept this offer in good faith and accept that all matters are closed in relation to his employment with the company, as well as accept in the spirit and answers afforded to him in relation to his grievances as particularly noted in the letter of 18th November 2005."The worker was named in the Rights Commissioner's Recommendation.
On 13th December 2006, the worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance to Section 13(9) of the Industrial Relations Act 1990. A Labour Court hearing took place on 5th April 2007.
WORKER'S ARGUMENTS:
3 1 The worker was excluded from transfers and discriminated against by the company. The selective picking and choosing of staff for transfer and the denial of one's seniority is purposefully flouting the well established custom and practice that exists. It became apparent overtime that the Company has adopted a policy to exclude the worker from transfers. Representations were made by a T.D. on behalf of the worker on seven occasions between 1987 to 1990. In the Company's replies to the T.D. the workers attendance was never raised as an issue.
2 The inordinate delay of over nine months to deliver a decision in relation to the grievance is in breach of contract, in breach of Grievance Procedures and in breach of natural justice and fair procedures.
3 The worker's Personnel file was unfairly compiled. It was missing a large number of documents without explanation. The large number of documents missing from the workers Personnel file cast an unbalanced view of his work history.
COMPANY'S ARGUMENTS:
4 1 The worker refers to isolated incidences separated by years and links them together into a conspiracy against him. He was interviewed for a number of posts but was unsuccessful. He was offered the opportunity to transfer to Drogheda, which he rejected. His lack of attendance at work due to a significant number of industrial accidents and accidents outside of work made him an unsuitable candidate for the managers in other depots.
2 The hearing of the workers grievance was delayed for specific reasons. Given the context of the grievance both sides agreed that a suitable person needed to be sourced to hear the case. It was difficult to secure such a person, the Company apologised to the worker for the delay and he accepted this. By agreeing to go through the Grievance hearing with his Personnel Manager and subsequently pursuing the grievance down a number of different avenues at the same time, the workers actions only served to confuse the issue.
3 At the Rights Commissioner hearing the worker and his representatives began to conduct an argument in relation to personnel files. The Company was surprised by this on the day as it had not formed part of the original application to the Rights Commissioner Service. The Company felt this had been dealt with in finality at the grievance hearing on the 7th October 2006. At this hearing it had been agreed that the worker would submit any file entries he deemed appropriate and these would be used to update his file.
DECISION:
The case before the Court concerns the worker's appeal against the Rights Commissioner's recommendation, which considered his claim that the Company, over many years, blocked his requests to transfer from his base at Inchicore.
The Court has considered the views of the parties expressed in their oral and written submissions, and had examined the extensive information available from both sides.
The Court is satisfied from the information submitted that the Company has properly dealt with the applications for transfers, over the years and that there was no "campaign" to block his requests for transfers. The Company explained that with the agreement of craft unions the Chief Mechanical Engineer's Department operated a number of methods of transfer through the years.
In 1995 the method agreed was also based on specific skills and experience i.e the "suitability of the candidate" became the significant determining factor and not just the level of seniority of the candidate.
From the data produced to the Court, it is clear that the worker had significant levels of absenteeism, particularly in the years 1998 to 2005. The Court accepts the contention that such levels of absenteeism could have played a significant role in the rejection of his application for transfers and would have deemed him "unsuitable" in the context of the agreed factors.
The Court also notes that when he applied for a position in Drogheda in 2003, the Company replied positively and provided him with instructions for proceeding with his application. The worker told the Court that he decided not to proceed wit the application as he was not being offered a shiftworking position, and he was of the view that this was an attempt to exclude him. The Company rejected this contention and stated it was commonplace within the organisation to transfer to a junior position on day work initially, and within a matter of weeks it would be normal to move to a shiftworking position. While the worker accepted that this was the norm, he explained that he did not trust the Company and therefore did not proceed to follow up on his application.
The Worker contended that his manager in Inchicore was not supportive of his applications for transfers over the years and in any event was prevented by the Company from doing so. The evidence supplied to the Court does not support this contention and the Court notes that when his manager moved to Drogheda he was fully supportive of the Worker's application to move there also.
The Worker claimed that had he transferred he would have saved on some of his travelling expenses and therefore he claimed compensation for the consequences of not transferring to a location nearer his home.
The Worker ceased employment with the Company on a voluntary severance basis in October 2005.
The Court does not accept that the Worker was blocked from transferring to another location; it accepts that there were genuine corporate reasons and therefore, does not find in favour of this claim.
However, the Court concurs with the Rights Commissioner's conclusions and accepts that this matter needs resolution and closure. Therefore, the Court upholds the Rights Commissioners recommendations, and decides that the Worker should accept the recommended payment of €2500 as a gesture of goodwill, to be accepted in full and final settlement of his claims against the Company.
The workers appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th April 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.