FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY COMMUNICATIONS WORKERS' UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation R-144139-Ir-14/JT.
BACKGROUND:
2. The Claimant is employed as a Postman since December 1977. In September 2012 a meeting between Management and the Claimant's Union was convened. The Claimant attended the meeting in an official capacity as union representative. In the course of the meeting the Claimant's Manager made an unprovoked offensive verbal attack on him. As a result of this incident the Claimant has been on sick leave.
- This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 9th January 2015 the Rights Commissioner issued the following Recommendation:-
- I have considered the submission of both parties. Firstly, for the record the Respondent accepts the behaviour of the manager concerned was unwarranted and unprofessional. Indeed he should have known better. What is not clear to me is that if the Claimant was dissatisfied with the outcome based on the letter of 6 December, 2012 why he did not invoke the grievance procedure. He was an active union member and at all times had the professional advice of his union. Yet he chose not to use it.
It is a well established precedent set by the Labour Court in recommendation INT 1014 which states;
The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have
been bypassed.
On that basis I am deferring any decision in this case until all internal procedures are exhausted.
- I have considered the submission of both parties. Firstly, for the record the Respondent accepts the behaviour of the manager concerned was unwarranted and unprofessional. Indeed he should have known better. What is not clear to me is that if the Claimant was dissatisfied with the outcome based on the letter of 6 December, 2012 why he did not invoke the grievance procedure. He was an active union member and at all times had the professional advice of his union. Yet he chose not to use it.
On the 4th February, 2015 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 26th March 2015.
WORKER’S ARGUMENTS:
3. 1. The Worker has been employed with An Post since December 1977 as a Postman at New Ross Delivery Service Unit and has an unblemished record and an excellent attendance record.
2. The Worker was treated unfairly by the Employer following an incident during a Company/Management meeting on 26th September, 2012.
3. The Worker had an extremely bad reaction to this personalised attack and has suffered deep stress as a direct result.
EMPLOYER’S ARGUMENTS:
4. 1. The Employer acknowledges that a Company Manager responded to remarks made by the Worker in an inappropriate manner.
2. The Employer acknowledged what happened and apologised to the Worker on more than one occasion for the behaviour of the Manager. the manager has since left its employment.
3. The Worker has been absent from work since the meeting and remains absent from work with no indication of a likely return to work date.
DECISION:
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation which found that the Claimant should pursue his complaint against the Company through the internal procedures until such procedures were exhausted.
Having considered the submissions of both sides the Court is of the view that there are issues on both sides which need to be resolved in an efficient and expeditious manner so that the Claimant can return to work and the parties can restore normal working relations.
Therefore the Court recommends that an independent facilitator (nominated by the Court) should in consultation and with the full co-operation of both parties carry out a review of the situation to date within a period of six weeks from the commencement of such review. The purpose of this review is to enable the independent facilitator to make recommendations to the parties as to how matters should be resolved including a process to facilitate an early return to work for the Claimant. For the avoidance of any doubt the Court is not recommending a new investigation into the matters involving the meeting of 26thSeptember 2012 but it is recommending a means to move forward and not look back.
On receipt of confirmation of acceptance of the Recommendation by both parties the Court will make the above-mentioned nomination.
Accordingly, the Court varies the Rights Commissioner's Recommendation.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
1st April, 2015Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.