FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NEWBRIDGE CUTLERY COMPANY LIMITED (REPRESENTED BY REDDY CHARLETON MCKNIGHT, SOLICITORS) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Recommendation IR/56186/07/MR
BACKGROUND:
2. The Claimant had worked first in the Manufacturing Section and then in the Dispatch Department of Newbridge Cutlery Company Limited as an Operative since 1999. As a result of alleged bullying and on going inter personal difficulties with another member of the staff she had been requested by Management to move back to the Manufacturing Section of the Company. The Claimant refused to move on the grounds that it would appear to her colleagues that she was guilty of some wrong-doing, of which she was not. As a direct result of this Management decision, the Claimant has not reported for work since June 2007, initially this absence was certified as 'sick leave' but in August 2007 she was deemed medically fit to return to her work. This absence from work, it is claimed, has caused the Claimant to suffer from undue stress in addition to financial hardship.
The issue involves a claim by the Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 21st May, 2008 the Rights Commissioner issued his Recommendation as follows:
`"Accordingly, I now formally recommend that the parties should arrange for the Worker's return to work as soon as is practicable in the coming weeks, on the basis of the following conditions:
If requested by the company to do so, the Worker should agree to return to work in the Manufacturing Section of the company;
The company should agree, at the time of the Worker's return to work, to make a public statement, possibly through a company notice board, informing all employees of her return to work and that, while her absence had been related to difficulties that had arisen, there was no suggestion of wrong doing whatsoever on her part. the Worker should not necessarily be named in any such statement;
The company should also agree, in the context of her returning to work as above, to make a once off and "without precedent" payment of €1000 to the Worker as a gesture of goodwill and in recognition of her long and dedicated service at the company."
The Worker was named in the Rights Commissioner's Recommendation.
On the 30th June, 2008 the Worker 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 20th August, 2008.
UNION'S ARGUMENTS:
3. 1. The Company should never have decided unilaterally to move the Claimant to the other side of the factory, as not only is the Claimant happy to continue working in the Dispatch Section, but it would also be perceived by her colleagues as if she was guilty of something.
2. The matter regarding the alleged bullying complaint and the counter-allegation was handled very badly from the outset by the Company. The Company should now comply with the Code of Practice for addressing Bullying in the Workplace (Declaration) Order, 2002.
COMPANY'S ARGUMENTS:
4. 1. The Worker gave no written details of her complaint to management, despite being requested to do so on foot of a formal complaint made. Management were anxious to conduct a formal investigation into the complaints made but the worker would not co-operate.
. 2. Every effort was made by the Company to resolve the issues through mediation, but to no avail, something had to be done so it was therefore reasonable to decide to separate the two Employees in order to resolve the matter.
3. In the absence of any other criteria, length of service or seniority was used to decide which Employee should be relocated at the other end of the factory, as allowed under the interchangeability policy agreed by both the Company and Union.
DECISION:
The appeal of the Rights Commissioner's Recommendation before the Court is on behalf of a Worker who sought to have the Company’s decision to transfer her to another department within the Company rescinded. The Rights Commissioner's Recommendation upheld the decision to transfer her in the circumstances and,
inter alia, recommended a gesture of goodwill payment of €1,000.00 on her return to work.
The Company submitted that the decision to transfer the Worker was taken in the context of unsubstantiated allegations; interpersonal difficulties between two colleagues; aborted attempts to resolve matters and was in line with its policy on interchangeability.
The Union maintained that the decision to transfer the worker was premature, inappropriate and insinuated some wrongdoing on her part.
Having given careful consideration to the claim, the Court notes that all informal procedures were exercised and exhausted, however, the difficulties were not resolved. The Court accepts that in the context of its duty of care to both the Complainant and her colleague, the Company had no alternative but to exercise every precaution to ensure that there would be no repetition of any inappropriate behaviour, when the Appellant returned to work after her period of illness. In that respect, and in line with its policy on interchangeability, the Court is of the view that to separate the two employees was reasonable in the circumstances. The Court accepts that it was not feasible to transfer both employees to different departments; therefore, the decision to select the person with the shorter service was abona fidedecision on the part of the Company.
Accordingly, the Court upholds the Rights Commissioner's Recommendation and dismisses the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd, September, 2008______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.