FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TRALEE COMMUNITY TRAINING CENTRE LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - 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-049236-Ir-07/POB
BACKGROUND:
2. Tralee Community Training Centre is a fully funded FAS project established in 1983 that provides training in various skills for early school leavers. The Worker concerned began her employment as an instructor at the Centre on 13th March 1995. The Worker commenced sick leave on 13th June 2005 and returned to work in March 2006.
On 12th September 2005 the Worker submitted a claim of bullying and harassment against her then Manager which was acknowledged by the Chairman of the Board of Directors in a letter sent to the Worker on the 16th September 2005. The letter also proposed the appointment of an independent, experienced external investigator.
A series of contacts by letter and telephone took place between the Board, the Union, who were representing the Worker and the alleged aggressor in an effort to progress the investigation. In June 2006 the Board were informed that due to health reasons the alleged aggressor would not be returning to work and would be retiring. The Board were now precluded from concluding the investigation.
The Worker did not accept this position and the issue was referred to a Rights Commission for investigation and recommendation. His Recommendation issued on the 19th June, 2007 where he found in favour of the Worker and awarded her €15,000 in compensation.
The Worker appealed the recommendation to the Labour Court on the 27th July, 2007 in accordance with Section 13(9) of the Industrial Relations Act, 1969, on the grounds that the compensation awarded was inadequate. A Labour Court hearing took place on the 15th July, 2008, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The Union acknowledges the voluntary role of the Director of the Board but nevertheless maintains that the Board must be prepared to carry out their responsibility to the full in preventing workplace bullying.
2. The Union contends that the Board were aware of the unacceptable style of management by the alleged aggressor.
3. The Union, on behalf of the Worker, contends that the sum awarded in compensation by the Rights Commissioner is unacceptable as it barely covered her loss of earnings without taking into account the stress, trauma and medical bills she had incurred.
COMPANY'S ARGUMENTS:
4. 1. The Company contends that the Rights Commissioner ruled correctly in his recommendation that the Board and its Chairman made every effort possible in the circumstances to conclude the investigation and could not be held responsible for circumstances outside their control.
2. The Company believes that the quantum awarded by the Rights Commissioner was calculated on the basis of the differential between half-pay and full-pay, which the Worker was subject to during her period of absence.
3. The Company submits that it accepted the amount awarded on the basis that it was an equitable remedy under the circumstances. The Company submits that there is no justification whatsoever for varying the award.
DECISION:
The Worker appealed the Rights Commissioner’s recommendation on the basis that the compensation awarded was inadequate for the effects of the alleged bullying and for the Employer’s failure to bring closure to the matter.
While there were some delays with application of the procedures, the Rights Commissioner held that there was fault on both sides and concluded that the Employer could not be held responsible for the non-completion of the investigation into the allegations made, due to factors outside its control. He awarded her €15,000 compensation.
Having given careful consideration to the oral and written submissions of both parties, the Court concurs with the Rights Commissioner’s findings that the Employer cannot be held responsible for allegations which have not been proven, however, in all the circumstances of this case the Court agrees with the level of compensation awarded by the Rights Commissioner.
Furthermore, the Court recommends that the Employer should re-examine the sick pay paid to the Worker during the period from June 2005 to February 2006 to ensure it complies with the Centre’s policy regarding the return of social welfare cheques and if necessary, it should rectify any anomalies, which may have occurred. Additionally, the Court recommends that the Worker’s sick leave record should not be adversely affected by this period of absence, i.e. this period should not be recorded as absence for the purposes of ascertaining entitlement during the 4 year sick leave cycle necessary for qualifying for sick pay.
Accordingly, the Rights Commissioner’s recommendation is affirmed with the above proviso. The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th July, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.