FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY O'MARA GERAGHTY MC COURT SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner R-085440-IR-09
BACKGROUND:
2. The case before the Court concerns a claim by the Employer in relation to the appeal of a Right's Commissioner's Recommendation. The issue involves a Worker who has been employed with the Company since 1985, working primarily in a postal operative role. In 1995, the Worker was appointed to his most recent position as a post office clerk. As a result of a Management review of the Worker's employment situation, the Worker was placed and has since remained on paid special leave from his employment since 2005 with the exception of a period of time between March and May 2006. The Management review concluded with the findings that the Worker's workplace demeanour was no longer tolerable and therefore in line with internal disciplinary procedures, a recommendation was made to dismiss the Worker from his employment with the Company. However, this recommendation was not implemented and an alternative entailing a final warning of dismissal being placed on the Worker's file and the compulsory redeployment of the Worker was decided. The Worker appealed this decision internally under the guidelines of the Company's grievance procedure. His appeal was unsuccessful and the matter was referred to a Rights Commissioner for investigation and recommendation. On the 28th July 2010, the Rights Commissioner issued his Recommendation as follows:
"I recommend that the services of an agreed competent workplace conflict specialist be engaged to facilitate and support the claimant's return to work in his former role of post office clerk. This initiative should be subject to terms of reference, which directly refer to the involvement of and provision of support to colleagues who will work with the claimant. Furthermore the conflict specialist should have priority right of decision in the event that the parties fail to agree upon any issue related to this initiative".
On the19th August 2010, the Employer 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 February 2011.
WORKER'S ARGUMENTS:
3. 1. The Worker asserts that he had genuine concerns which he attempted to raise initially through the Company'sinternal procedures.
2. The Worker is of the opinion that the disciplinary sanction imposed on him is a direct result of his use of external mechanisms in an effort to resolve his issues.
3. The Worker is anxious to return to work and is seeking reinstatement to his previous role as post office clerk.
EMPLOYER'S ARGUMENTS:
4. 1. Management contends that all avenues were exhausted in attempting to deal with issues arising with the Worker and that the Worker was afforded fair procedure with regards to disciplinary issues.
2. Management further contends that the Worker's behaviour was intolerable and unacceptable and he was no longer suitable to continue his employment with the Company. Management however, chose not to dismiss the Worker in these circumstances.
3. Management are strongly of the view that the Worker's reinstatement to his previous role would have implications on his co-workers and are therefore seeking the redeployment of the Worker to an alternative role.
DECISION:
It is clear that the relationship between the Claimant and his managers has been characterised by conflict and belligerence on a range of work related issues. It is difficult to avoid the conclusion that this had caused a breakdown in any form of normal employer /employee relationship. In these circumstances the Court believes that its approach should be directed at assisting the parties to restore normal working relations. With that in view the Court recommends as follows: -
1. The management should prepare a comprehensive statement setting out the standards of behaviour and conduct required of him and all parties in the employment.
2. If the Claimant takes issue with any aspect of the statement proffered the matter will be referred to an arbitrator nominated by the Court whose decision will be final.
3. The Claimant should confirm in writing his acceptance of the statement, amended by the arbitrator if necessary.
4. The Claimant should accept the new role of Outdoor Postal Operative on the basis that it is intended to facilitate the reestablishment of normal relationships and not as any form of disciplinary sanction.
5. The Claimant’s position should be reviewed after a period of 12 months from thetime at which he resumes employment. If he has adhered to the standards set out in the statement referred to at 1 above his restoration to his original posting should be considered. At that stage the continuance of a record of a serious offence on the Claimant’s file should also be reviewed.
The Rights Commissioner's Recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
7th February 2011______________________
SCChairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.