FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of a Recommendation of a Rights Commissioner No. R0092723-IR-10/JT.
BACKGROUND:
2. The Worker concerned is a Bin Lorry Driver with Dublin City Council (DCC) with 37 years' service.
In November 2007 a letter was received in Waste Management offices at Marrowbone Lane containing allegations against certain named staff in the Davitt Road Depot. The letter was signed in the name of the Worker.
The following day the Inspector who had received the letter brought it to the attention of his two Supervisors with a view to examining the allegations/complaints against operational management. The Supervisors advised the Inspector that they doubted that the Worker was the author of the letter. The letter was subsequently brought to the attention of the Worker's Trade Union representative who confirmed that it was not written by the Worker.
Following a meeting between the Worker and Management, on another matter, the Worker was informed about the letter and asked for his comments. He was shocked and stated that he was not the author. He requested a letter from Management to the effect that he was not the author of the letter so that he could put it on the notice board and received a letter stating that he (the Worker was named) had no hand act or part in the submission of the letter.
All efforts by Management to discover the identity of the letter writer were unsuccessful.
The matter was referred to a Rights Commissioner for investigation and recommendation. His decision issued on the 22nd March 2011 in which he recommended that the claimant
.... 'seriously consider the offer of the respondent's of a transfer to another depot rather than remain where he is. I do not believe that the respondent can be held liable for someone who may or may not be in their employment carry out such a malicious act.'
The worker appealed the recommendation of the Rights Commissioner to the Labour Court on the 15th April 2011, in accordance with Section 13(9) of the Industrial Relations At, 1969. A Labour Court hearing took place on the 22nd July 2011.
UNION'S ARGUMENTS:
3. 1. The Union maintains that not a shred of evidence has been produced by the Council to show that any investigation was ever conducted into the event.
2. The Union contends that Management could and should have established the validity of the "bogus" complaint letter before discussing it with anyone else.
MANAGEMENT'S ARGUMENTS:
4. 1. The City Council accept without reservation that the Worker did not submit the letter in question and has confirmed this in various correspondences.
2. The City Council dealt with the matter in a confidential manner and has tried to deal with the Worker in a reasonable way since the incident occurred.
3. The City Council maintains that it has done all that could reasonably done to identify the sender of the letter and has also offered the Worker like work in another depot.
DECISION:
This is an appeal by a worker of a Rights Commissioner’s Recommendation. The matter before the Rights Commissioner’s concerned the Claimant’s claim that the City Council failed to adequately investigate and deal with the circumstances surrounding the publication of a letter of complaint to Management, which purportedly came from the Claimant. The Rights Commissioner found against the Claimant’s claim and held that as Management had fully accepted that the claimant was not the author of the letter and that he had no hand, act or part to play in its submission to the City Council then there was very little else that Management could have done in the circumstances. He held that Management could not be held responsible for someone who may or may not be in its employment who carried out the malicious act.
In his Recommendation the Rights Commissioner’s recommended that the Claimant should seriously give consideration to an offer made by the City Council to transfer the claimant to another depot.
The dispute between the parties arose as a result of a letter sent to management in the City Council on 28th November 2007 allegedly by the Claimant, making a complaint about his fellow colleagues. One week later it was accepted by Management that the Claimant was not the author of the letter and had no part in its submission. Management wrote to the claimant on 5th December 2007 stating that it was satisfied that he had“no hand, act or part in the submission of the letter”. The Union on behalf of the Claimant submitted that Management’s reaction was a half-hearted retraction of the accusation levelled at the Claimant. It submitted that there was no acknowledgement by Management of the Claimant’s innocence and allowed for the distinct possibility that sometime in the future it could be confirmed that he was in fact the author of the letter.
The Union stated that despite the Claimant’s efforts to convince his fellow colleagues of his non-involvement in the bogus letter, a significant number of others were unconvinced and expressed their anger and animosity towards him, which gave rise to high level of anxiety for him.
Management submitted that it had dealt with the matter of the bogus letter in a fair and reasonable way; it fully accepted without reservation that the Claimant had nothing to do with it and had confirmed that view in writing on three occasions - 5th December 2007; 28th April 2008 and 16th February 2009. It had done all that could be reasonably be done to identify the sender of the letter and had offered the Claimant like work in another depot in an effort to assist him as he was having difficulties at his own depot. Furthermore, it provided counselling services to him.
Having considered the oral and written submissions of both parties the Court concurs with the conclusions reached by the Rights Commissioner, however, the offer of redeployment made by the Management is no longer available. The Union asked the Court to recommend that meaningful discussions should now take place between the parties in an effort to find alternative employment for the Claimant within the City Council. The Court notes that Management expressed a willingness to meaningfully engage with the Union and that in the event of a position becoming available in the future that such an offer of alternative employment would be at the terms and conditions that apply thereto.
Accordingly, the Court recommends that such discussions should now take place and the Claimant should give careful consideration to any alternative position with the City Council, with the rate of pay and the terms and conditions attaching to that post.
The Rights Commissioner’s Recommendation is varied in accordance with the Court’s Recommendation above.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th July 2011______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.