FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE SOUTH - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal of disciplinary sanctions.
BACKGROUND:
2. The case concerns a claim by the Claimant that his transfer to a new location within the HSE was unfair. The Employer said the Claimant was treated in a fair and just manner and was in accordance with the HSE’s Disciplinary Procedure. On the 3rdApril 2013 the Claimant referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.
A Labour Court hearing took place on the 8th July 2014.
WORKER'S ARGUMENTS:
3. 1. The Claimant commenced employment with the HSE in February 2000 in an orderly/security post. On the 14th September 2012 he attended a disciplinary hearing in relation to two incidents that occurred 7 to 8 months previously.
2. The Claimant apologised for the incidences and received a final written warning, unpaid suspension for 4 weeks and a transfer to a new location.
3. The Claimant accepts the first two actions but feels there is no need to transfer him to a new location.
EMPLOYER'S ARGUMENTS:
4. 1. In January 2012 the Claimant was assigned to provide a ‘special’ to a patient in the hospital. He refused to do so and was advised to do so “under protest” and raise his grievance under the HSE Grievance Policy.
2. The Claimant was on a final written warning from March 2011 and as he had refused to carry out the duties as requested, it was decided to progress the Claimant to stage 4 of the Disciplinary Procedure for Employees of the HSE.
3. The Claimant appealed the Decision under the Grievance Policy. The Appeals Officer having taken on board the loss of a security allowance to the Claimant, compensated him for the loss of the allowance to the value of 1.5 times the annual value, to be paid in two equal instalments six months apart. The Claimant was paid the first instalment in December 2012.
RECOMMENDATION:
Having carefully considered the submissions of both parties to this dispute the Court finds that management’s decision to discipline the Claimant was justified. However the Court finds that the sanction imposed was not proportionate and should be moderated as follows
•The Final Written Warning should stand•The four week’s suspension should stand
•The decision to transfer the claimant to appropriate duties at another location should stand
•The decision to withhold the location allowance from the Claimant should be limited to a period of 12 months after which it should be restored to him on a red circled, personal to holder basis. The buyout monies paid into the claimant’s bank account should be repaid to the HSE over an agreed period of time.
Finally the Court notes that the agreed Disciplinary Procedures in operation in the HSE make provision for an appeal to a more Senior Manager or to an Independent Adjudicator. In this case the Claimant was notified that his appeal lay to a more Senior Manager. By so doing the HSE gave incomplete information to the Claimant.
The Court takes the view that where the HSE provides information to an employee on appeal options set out in an agreed procedure it must give a complete account of the options available. In this case it failed to do so. The Court took into account the procedural weaknesses in the procedures employed in this case in coming to its decision.
In that context the Court so recommends.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
24th July, 2014.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran Roche, Court Secretary.