FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : COLLEGE PROTEINS (REPRESENTED BY JHR SOLUTIONS) - AND - A WORKER (REPRESENTED BY WORKPLACE SOLUTIONS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Rights Commissioner Recommendation No: r-097873-ir-10/EH.
BACKGROUND:
2. This case is an appeal by the employer of Rights Commissioner's Decision No: r-097873-ir-10/EH. The issue concerns the placing of a worker on administrative leave after she allegedly acted without instruction in proposing to place a colleague on a two day week. The colleague's hours were proposed to be reduced on her return from pregnancy related sick leave. The proposal was subsequently rescinded. However, the worker's actions prompted a statement being submitted by the pregnant worker in relation to the way she had been treated. Management subsequently placed the worker who proposed to reduce her hours on administrative leave while they held an internal investigation into the perceived bullying and harassment of the pregnant worker. The worker claims to have acted on management's instructions in imposing the reduced working week on her colleague whereas management contend that it had not meant to impose a reduction at all but was merely considering ways of restructuring the staffing levels within the Company. The worker on administrative leave was issued with a verbal warning and bonus payments were witheld. The worker claims being placed on administrative leave undermined her senior position within the organisation.
The matter was referred to a Rights Commissioner for investigation. His recommendation issued on the 21st March, 2011 and found that in all the circumstances, and having taken all evidence into account, the Company acted hastily in placing the worker on administrative leave prior to establishing whether or not she had a case to answer. The Rights Commissioner recommended that the verbal warning be expunged from the worker's record and that she be compensated in the amount of €5000 for the distress caused. The issue of the bonus was not part of the initial referral and did not form part of the Rights Commissioner's Recommendation.
On the 4th April 2011, the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 20th July, 2011
MANAGEMENT'S ARGUMENTS:
3 1 Management did not instruct the worker to reduce her colleagues working hours. There was no formal decision on a reduced working week and should not have been discussed with the worker prior to a management decision being made.
2 Management carried out its investigation in compliance with its policies and afforded the worker natural justice and fair procedure at all times. The worker was not placed on administrative leave as a disciplinary sanction. She was placed on leave so as not to cause further stress to her while management carried out its investigation.
UNION'S ARGUMENTS:
4 1 The worker did not act unilaterally in proposing to reduce the working hours of her colleague. She was acting on the instructions of senior management at all times. The issue of the reduced working week only became a concern to management when it realised the reduction could possibly infer a discrimminatory disposition towards a pregnant member of staff. It was at this point that the worker was accused of acting without instruction and placed on administrative leave pending an investigation.
2 The worker was placed on administrative leave before management established if there was in fact any incidents of harassment. The worker was also denied fair procedures in so far as there were issues concerning her representation at investigative and disciplinary meetings. In addition, the worker did not see and was therefore unable to rebut the accusations made against her.
DECISION:
This matter came before the Court by way of an appeal against the Recommendation of a Rights Commissioner pursuant to Section 13(9) of the Industrial Relations Act 1969. Accordingly, the Court's function is to investigate the subject matter of a trade dispute between the parties. The Court is required to set out its opinion on the merits of the dispute and the basis upon which it should be resolved.
While extensive submissions were made to the Court in advancing the appeal, such submissions are of marginal relevance in a case such as this. The determinative considerations relate to the extent to which the employer adhered to established principles of good employment practice and objective standards of fairness.
Having regard to these considerations the Court is satisfied that the findings and conclusions of the Rights Commissioner are fair and reasonable in all the circumstances of the case.
Accordingly, the Recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
8th August, 2011.______________________
AH.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.