FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY MS KEALIN IRELAND) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner Recommendation No: r-109619-ir-11/GC
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner Recommendation No: r-109619-ir-11/GC. The issue concerns the withdrawal of a permanent job offer after an unsatisfactory and disputed reference was made available to a prospective employer. The worker's position is that issues listed in the reference were unfounded and untrue and that no opportunity was given to her to have the disputed issues resolved at local level. The worker further contends that the reference remaining on file effectively resulted in her losing out on a permanent post for which she was otherwise suitably qualified. Management's position is that it acted in good faith and the reference as recorded was based on management's view of the worker's performance.
The matter was referred to a Rights Commissioner for investigation. Her Recommendation issued on the 17th November 2011. The Rights Commissioner recommended that the references at issue be removed from the workers file and that an agreed reference be compiled. The worker was also awarded €3000 compensation for the length of time it took management to bring matters to finality. It was also recommended that the HSE issue an apology to the worker for its delay in dealing with the matters raised by the worker.
On the 6th December 2011, the worker 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 30th May, 2012.
UNION'S ARGUMENT:
3 1 Management knowingly circulated a negative reference to prospective employers that was totally inaccurate and unfounded. Its actions resulted in the worker having an offer of a permanent position as a Social Worker withdrawn. In these circumstances, where the actions of management were totally unacceptable, and the worker has suffered greatly as a result, the €3000 compensation and apology recommended by the Rights Commissioner's Recommendation is insufficient to resolve this dispute.
COMPANY'S ARGUMENTS:
4 1 In all of the circumstances of this dispute, management consider the Rights Commissioner's Recommendation to be appropriate. In addition to compensation and an apology, the initial reference has been removed from the worker's file and will be replaced with a reference agreed between the parties. Management contend that these actions should be accepted by the worker in settlement of all matters in dispute.
DECISION:
The Court finds that the complainant had a permanent job offer withdrawn by the HSE on foot of an internal reference that contained inaccurate and incorrect information about her work performance and employment record. Despite the complainant’s best efforts to have it removed or corrected the reference was retained on file and was available to any other employer that considered offering her employment thereby severely prejudicing her prospects of finding permanent employment in a major area of her chosen profession.
The Court takes the view that this was a severe wrong perpetrated on her by her employer that was compounded by the manner in which it dealt with her after the inaccuracies were brought to its attention. The Court further takes the view that the employer in this case should take steps to restore the complainant to the position she would have been in had the wrong not been perpetrated against her.
Accordingly the Court recommends that the complainant be continued in employment by the HSE in a temporary capacity without interruption pending her appointment to the first next suitable and appropriate permanent vacancy that becomes available.
The Court further recommends that the complainant be paid the sum of €10,000 by way of compensation for the delay in dealing with and addressing the issues raised and for the distress caused to her.
The Court notes that management has arranged to take the steps necessary to ensure that the offending reference is dealt with in such a manner as to pose no further threat to the complainant’s future employment prospects.
The Rights Commissioner’s recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
21st June 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.