FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SOUTH DUBLIN COUNTY COUNCIL - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation R-104669-Ir-11/JC
BACKGROUND:
2. The worker (a carpenter) has been employed for approximately 16 years by the Council and until January, 2011, was stationed in Unit 10, Housing & Maintenance. In March, 2009, he made a complaint of bullying and harassment against his Clerk of Works. An external Investigator was engaged by the Council. The worker listed 18 complaints and the Investigator upheld 4 of these in his report of March, 2010. The Council met with the Clerk of Works in June, 2010, and sanctions were applied against him in line with the Council's policy. The Council then met with the worker in November, 2010, (he had been on sick leave since April, 2010) to discuss the report and he was informed that the Director of the Housing Department had identified a need to change some work practices and reporting arrangements.
On the 5th January, 2011, the worker was called to a meeting and was told that he was being transferred to the Parks Department the following day. He believes that this was a form of discipline for bringing his case against the Clerk of Works. He remains in the Parks Department to date although claims that he is still being paid by the Housing & Maintenance Department.
The worker referred his case to a Rights Commissioner whose recommendation was as follows:
Having examined all of the evidence presented by both parties I am satisfied that a thorough and fair investigation was carried out by the Council into the claimant's allegations of bullying. I note that the Investigator's found that "of the large number of allegations made by the worker against (named individual) the investigation has upheld the worker's allegations" in four listed instances. I find that the County Council did not adequately acknowledge to the claimant that he was subjected to bullying on the four occasions identified by the Investigator. While I fully understand the claimant's concern that his move to another work location could be seen as disciplinary action against him I find that the job that the claimant is now doing became vacant due to the retirement of the previous holder and that the claimant skills were ideally suited for that vacancy and that he was recommended for the job by the previous holder. I also find that the Council's decision to move the claimant to that job on his return from sick leave was not intended as any form of disciplinary action against him or linked to his bullying complaints or the investigation of those complaints. I find that the Council has addressed the matters raised in the Investigators report. I note that the Council are implementing management training.
In all the circumstances of this case I recommend the following in full and final settlement of this dispute:
- That the Council confirm to the claimant in writing that they accept the
bullying and that they make an ex gratia payment to him of €3500 as
compensation.
- That the Council confirm to the claimant in writing that his transfer to the
matter or connected to his bullying complaint or to the outcome of that
investigation.
- That the Council confirm to the claimant that there is no disciplinary matter
(The worker was named in the above recommendation.)
Both parties appealed the recommendation, the Council on the 4th August, 2011, and the worker on the 8th August, 2011, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th November, 2011.
WORKER'S ARGUMENTS:
3. 1. The Council is implementing its own grievance and disciplinary procedures against the worker instead of the Clerk of Works who was the "guilty party" in this case. The worker was moved from Housing & Maintenance where he had enjoyed working for many years and to which he still wishes to return. There was a number of other carpenters who could have been transferred instead of the worker concerned.
2. The Council promised at the meeting in November, 2010, that it would introduce a plan of action to deal with issues raised in the investigation. To date nothing has happened.
COUNCIL'S ARGUMENTS:
4. 1. Whilst the Investigator upheld four of the worker's complaints he also concluded that the worker contributed on a number of occasions to the problems by his attitude and that some of his allegations were tenuous.
2. The Council could not discuss the investigation with the worker until November, 2010, because he had been on sick leave since April, 2010. Indeed, the worker enjoyed the benefit of an eight-week extension of the Council's sick-pay scheme.
3. The worker was moved to the Parks Department as he was the best person for the job. The Council believes that it dealt with his complaint in a manner consistent with its Dignity at Work Policy. There is no justification for the award of €3,500.
DECISION:
- The case before the Court concerns a joint appeal of a Rights Commissioner’s Recommendation. The worker appealed the Recommendation claiming that the Council had not taken any action following the investigation of his complaint of bullying and had not implemented its Grievance and Disciplinary procedure. Furthermore, he disputed his transfer to another Department. The Council appealed the monetary award made by the Rights Commissioner.
Having considered the submissions of both parties the Court notes that the Investigator appointed in accordance with the Council’s “Dignity at Work” Policy issued his report into the allegations of bullying made by the Claimant against a named Respondent on 26th March, 2010. On 21st June, 2010, the Council imposed sanctions on the named Respondent in line with its “Dignity at Work” Policy and it proceeded to set up appropriate management training.
As the Claimant was absent on sick leave until the end of October, 2010, the Council organised a meeting with the Claimant and his Union representative as soon as it was possible to do so and advised them of the actions taken and the necessary requirements to change work practices and reporting arrangements as a result of the Investigator’s Report. At this point the matter was considered to be resolved.
However, subsequent to that meeting the Claimant was transferred to the Parks Department, in circumstances which, the Council acknowledges, were less than satisfactory. There was no formal communication or notice given to the Claimant beforehand and he continues in that role without confirmation of his position long term. The Claimant informed the Court that his preference would be to return to the Housing and Maintenance Department and he is concerned that his transfer may be viewed as a form of discipline for the complaint made.
Management outlined the reasons for the transfer and held that they were in line with its transferability policy; furthermore management stated that it was due to the Claimant’s high level of skills that he was recommended for the position in the Parks Department when it became available in January, 2011.
The Court concurs with most of the Rights Commissioner’s Recommendation and amends it in the following manner. The Court recommends that the Council should confirm in writing to the Claimant that it accepts the findings of the Investigator that four of his complaints were upheld. The Court furthermore recommends that the Council confirms in writing that his transfer was not in any respect a disciplinary matter nor connected to his bullying complaint nor the outcome of the investigation and that the Council confirm that the verbal warning given to him has been expunged from his personnel file and it should return any monies deducted from his pay.
The Court is satisfied that the Council handled the Claimant’s complaint in accordance with its “Dignity at Work” Policy and that the sanctions imposed (details supplied to the Court) as a result of the Investigator’s findings were appropriate in all the circumstances. Therefore, the Court does not uphold the Rights Commissioner’s Recommendation that a monetary award should be paid to the Claimant. Furthermore, the Court recommends that the Council should confirm in writing the Claimant’s position in the Parks Department and this should outline the reasons for his transfer and supply details of his reporting mechanism (whether to the Housing and Maintenance Department or the Parks Department) and in view of the skills he possesses it should confirm the retention of his multiskilling rate of pay while employed in the Parks Department.
The Court amends the Rights Commissioner accordingly.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th November, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.