FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KILDARE COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - A WORKER (REPRESENTED BY AMICUS UNITE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of a Rights Commissioner's Recommendation r-062011-ir-08/JT
BACKGROUND:
2. The Claimant was employed as a Water Inspector with Kildare County Council since January 2002. In 2005 an issue arose which involved his Senior Executive Engineer and from April 2006 the matter was formally dealt with under the Council's Dignity at Work Policy.
The issue involves a claim by the Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 24th October, 2008, the Rights Commissioner issued his Recommendation as follows:
"I have considered the submissions and arguments made by both parties. It is clear to me that the respondents are making every effort to arrange suitable arrangements for the claimant to return to work. I note that that the claimant has been on sick leave since these matters were referred to the Rights Commissioners Service.
I have therefore decided that the claimant within 5 working days of the date of this decision, the claimant should indicate to the respondent which position he wishes to return to in their employment. In regards to mediation, if the claimant does not wish to participate in it then the matter should be closed."
On the 2nd December, 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 2nd April, 2009.
WORKER'S ARGUMENTS
3. 1. An independent investigator appointed by Kildare County Council verified three breaches of the Worker's dignity at work and the Rights Commissioner failed to uphold these findings.
2. The Claimant now works in an undefined role that he feels is not suitable and is refused an opportunity to return to his original role as a Leakage Inspector.
3. The Worker requests that he be reinstated in his original role or at the least a role that would be acceptable and where he would suffer no disadvantage.
MANAGEMENT'S ARGUMENTS
4. 1. The Council has been working with the Complainant in an effort to resolve matters to his satisfaction.
2. The Council has made every effort possible to facilitate his return to work.
3. The issue of workplace bullying was processed through the Council's policies and procedures. The Council will continue to support the Claimant in order that he may move his career forward with the Council.
DECISION:
The matter before the Court concerns an appeal on behalf of the Claimant against a Rights Commissioner’s Recommendation that upheld Management’s position. The Claimant appealed the case on the basis that the Rights Commissioner had not dealt with his claim that an independent investigation into allegations of bullying he had made against his senior officer should be upheld and that the Rights Commissioner failed to recommend that appropriate steps should be taken by Management to protect his dignity at work.
The senior officer, in accordance with the County Council’s procedures, appealed the findings of the independent investigation to the County Manager and a report was issued upholding that appeal and finding that the independent investigation was procedurally flawed. The Claimant was dissatisfied with the County Manager’s findings and sought to have the first independent investigation upheld.
Having considered the submissions of both sides and having examined all the relevant documentation provided, the Court finds as follows:
-Despite the fact that two incidents alleged to have occurred on 10th May and 27th June 2006 did not form the basis of a separate claim, the Court is of the view that it was appropriate that the independent investigator took them into account as they were inextricably linked with the substantive complaints made.
-The Court is of the view that the Claimant should have received details of the grounds of appeal and should have been afforded the opportunity to make comments.
-While the Claimant was not supplied with a copy of the grounds of appeal, the Court is of the view that he should have availed of the offer to participate in the appeal hearing. The Court is further of the view that the Claimant’s refusal to participate in the appeal process, while understandable when he was not given details of the grounds of appeal, resulted in a weakness in the appeal findings.
-The Court is of the view that the County Manager’s report should have made recommendations on the actions Management should take as a result of his findings.
- The Court is further of the view that the County Manager's report of the result of the appeal should have been furnished to the Claimant as soon as it was available which it was not.
-The Court finds that there were serious procedural flaws with the County Manager's report of the appeal, however, it is reluctant to recommend that it be set aside as the senior officer mentioned above was not a party to the Court's hearing of this case.
-The Court is satisfied that Management made significant efforts to accommodate the Claimant and to return him back into the workplace while ensuring as far as possible his dignity and respect at work. Furthermore, the Court is satisfied that these efforts have been mostly successful, the Claimant is now in a meaningful role in his current post as part of the Building Energy Rating Team. Management confirmed for the Court that the “temporary” nature of this post is essentially a trial period for the Claimant, who may opt to remain in the post if he so desires.
In conclusion, taking account of the above and in all the circumstances of this case, the Court recommends that the Claimant should make every effort to try out the post in the Building Energy Rating Team. However, in the event of a vacancy coming available as a Leakage Inspector in the future, the Court recommends that the Claimant should be offered the post in the first instance.
The Court varies the Rights Commissioner’s Recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th April, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.