FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of a Recommendation of a Rights Commissioner ir-121430/12/MR
BACKGROUND:
2. The Claimant is a Childcare Worker and has worked for the HSE since March 2006. Two issues arose during the hearing. The first issue happened in December 2011 when he suggested a way to contact a child who had been missing from the Unit where he worked. Another issue arose in the Unit in March 2011 and following this the Claimant completed the necessary incident report and did the hand over to his colleague. Following the incident in March 2011, a note was typed and passed around the unit which defamed the Claimant.
- The Employer said the issue in December 2011 related to the Claimants failure to adhere to a Management Plan and the second issue arose when a member of staff phoned the HSE on the 9thMarch 2011 and made a verbal complaint of bullying against the Claimant. This complaint was dealt with in accordance with the HSE Dignity at Work Policy.
This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 10thSeptember 2012 the Rights Commissioner issued the following Recommendation:-- “Having carefully considered the evidence available to me, and bearing in mind the obvious need to observe the highest standards in the implementation of all policies and procedures in this particular employment, I have concluded that the issuing of an oral warning was not unreasonable in the circumstances and I now find accordingly.
For the absence of doubt, I would like to add that this conclusion is, of course, not intended to imply that any employee should not make suggestions regarding practices and procedures at their workplace. It simply means that such suggestions have to be made in an appropriate way and at an appropriate time, and they have to have regard to the realities of the particular employment and to the possible legal and other ramifications if the suggestions were to lead to particular courses of action.
I therefore recommend that Mr. X and IMPACT should accept that their claim regarding the incident in December 2011 fails. At the same time, however, the parties should both commit themselves to building on the HSE’s letter of 3 September 2012 and working together in the future in a much more positive way than heretofore.
- “Having carefully considered the evidence available to me, and bearing in mind the obvious need to observe the highest standards in the implementation of all policies and procedures in this particular employment, I have concluded that the issuing of an oral warning was not unreasonable in the circumstances and I now find accordingly.
On the 4th October 2012 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 25th April 2013.
WORKER’S ARGUMENTS:
3. 1. On the 21st December 2011, an incident arose. The Claimant noticed a young person outside the Unit who looked dishevelled and who was the subject of a bench warrant. He asked the young person to come into the Unit but he refused and left. The Claimant reported the incident to the Gardai and later when he met his Supervisor suggested a possible way to contact the young man. His Supervisor disagreed and the Claimant moved on.
2. The person who made the allegation of bullying against the Claimant did not proceed with it to the formal stage. In spite of this, Management continued to pursue the Claimant over the allegation.
3. The Claimant was given a verbal warning.
EMPLOYER’S ARGUMENTS:
4. 1. The Claimant was given a verbal warning because he did not adhere to the Management Plan. Management acknowledge the Claimant had the best interests of the Child on his mind at all times, but in this instance there was no scope for another direction.
2. A member of staff phoned the HSE on the 9th March 2011 and made a verbal complaint of bullying against the Claimant. A key objective of the Dignity at Work Policy is to ensure that all reasonable efforts are made by Management to deal with complaints of bullying and harassment at local level.
3. Management met with the Claimant on the 9th March and explained the Policy and made him aware of the complaint. On the 31st March and 27th April 2011, Management suggested mediation which the Claimant declined. The complainant dropped the complaint and Management told the Claimant the matter was closed.
DECISION:
The Court notes that the HSE accepts that the Claimant acted bona fide and in the best interests of the child, as he perceived it, in relation to the incident giving rise to this dispute.
The Court further notes that the warning in question has been expunged on its expiry.
Having regard to all the circumstances the Court recommends that the dispute be regarded as resolved on that basis.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
10th May, 2013.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.