FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : COVIDIEN IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Recommendation of a Rights Commissioner r-123100-Ir-12/GC.
BACKGROUND:
2. The Claimant began working for the Company in March 1999. He claims he was subjected to maltreatment and bullying by his Supervisor and asked his Union Representatives to intervene. He was then moved from the position of Materials Handler to General Operator.
- The Employer held on-going talks with the Claimant about his performance issues. There has been no loss of earnings or demotion for the claimant, just reassignment of duties within the General Operators role.
This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 27th July 2012 the Rights Commissioner issued the following Recommendation:-- “There are a number of issues to be considered here and some irreconcilable differences between the claimant’s version of events and that of the Company. However, based on the evidence and submissions I find as follows:
Although the Company has a position that the transfer of the claimant to General Operator duties is not a demotion, the fact that the claimant held the position of Materials Handler and after 10 years was “put back” as an Operator does indicate loss in status. I find from the evidence that the Supervisor had cause to speak with the claimant about his performance in the period before he was placed back as a General Operator and it is common case that there was a performance review meeting on the 4th October 2011. I note the evidence that, at that meeting, the claimant’s Union Rep sought and was granted some time for the claimant’s performance to improve. I note that although the claimant was spoken to about his performance, he was simply removed from his job and “put back on the line” without any formal written warning or clear timeline in which to improve his performance. This is not in line with due process, natural justice or the respondent’s own procedures. I therefore find the company’s handling of the transfer of the claimant to have been flawed.
In relation to the company’s investigation into the complaint by the claimant of bullying and harassment against his Supervisor, I note that the company conducted an extensive investigation involving some 23 different meetings and interviews. I note that the Company decided not to interview the 2 former Union Reps who had left the Company and I note that the evidence of one of the witnesses was not accepted as he did not provide dates, and did not report incidents in a timely manner. These are questionable conclusions. In all, I find there were some flaws in the Company investigation but I do not find that it was sufficiently flawed to re-open an investigation.
In relation to the allegation that the claimant was penalised for making a complaint that his Supervisor had subjected him to bullying and harassment, I note that Mr. Gunning made his formal complaint on 28th October 2011. Given this, and the fact that the Supervisor had spoken to him on a few occasions about his performance, I do not conclusively find a connection between the complaint and the transfer of the claimant.
The claimant has indicated that he does not wish to get involved in mediation. However, I cannot see how he could hope to return to his job as Material Handler without mediation, coaching and some milestones for performance improvement and I recommend that the claimant at least take up the company’s offer mediation in the first instance.
In the meantime, because there were some flaws in the Company’s handling of Mr. Gunning transfer I recommend they offer him a compensation sum of €3000 in settlement of his dispute”.
- “There are a number of issues to be considered here and some irreconcilable differences between the claimant’s version of events and that of the Company. However, based on the evidence and submissions I find as follows:
On the 21st January 2013 the Claimant 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 23rd April 2013.
WORKER’S ARGUMENTS:
3. 1. The Company has a comprehensive disciplinary procedure in place which was not followed at all. There is no provision in the procedure to move someone from their job, the procedure provides for warnings to be given.
2. The Claimant and his Union Representative left the meeting with the Supervisor understanding that the Claimant would remain as a Materials Handler for one month to improve his performance.
3. The Claimant was not provided with the witness statements until after the whole process including the appeal had concluded, this was procedurally incorrect and offends the principles of natural justice.
EMPLOYER’S ARGUMENTS:
4. 1. The Company strongly rejects the claim that its procedures were unsound. The HR Manager removed herself from the investigation and an independent member of the HR team with no previous involvement with the Claimant carried out the investigation.
2. The Claimant was informed in writing of the outcome of the process and was given the right to appeal. The appeal was heard by the Plant Manager who had no previous involvement in the case.
3. Manual handling is part of a General Operator’s role, and the Claimant is employed as a General Operator. It is normal business practice for the Company to move employees to different machines or processes in line with their job role and with business needs.
DECISION:
The Court has considerable concerns at the manner in which the Claimant was transferred out of the role of Materials Handler and the adequacy of the process followed by the Company in that regard.
The ultimate solution to the underlying problem giving rise to this dispute lies in finding a basis upon which the Claimant can be returned to his former role and the status quo restored.
In the Court’s view that can best be achieved through a process of independent mediation. The Court therefore decides that the parties should engage in such a process with a view to having the Claimant restored to the role of Materials Handler.
The recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
1st May, 2013.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.