FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OCS ONE COMPLETE SOLUTION LIMITED (REPRESENTED BY IBEC) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal of an Adjudication Officer's Recommendation no: r158340-ir-15/JT.
BACKGROUND:
2. This case concerns a final written warning and a demotion given to the Appellant following two incidents. Following the first incident in April 2015 an informal process was opened where the Appellant apologised to his colleague and the matter was considered closed.
- This colleague then gave an old mobile phone to the Appellant who thought it was his to keep. His colleague subsequently asked for it back. His colleague discovered offensive text messages about her on the phone which had been sent between the Appellant and other colleagues. She brought this to the attention of the Company. The company carried a process of investigation and discipline. That process resulted in a sanction being applied to the Appellant.
- This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 18th January 2016 the Adjudication Officer issued the following Recommendation:-
- I have considered the submissions made by the parties. The Respondents were within their rights to reconsider the previous incident between the parties as it provided a pattern of behaviour on behalf of the Claimant. It also showed that the apology given at that time was insincere as the Claimant continued in his behaviour after this. The Respondent is legally liable to provide a safe working environment including protection from unacceptable behaviour between employees. Therefore, they had no choice but to treat the incident with the utmost concern.
In regard the points raised by the Claimant concerning procedural issues; these are minor technical matters that would not have affected the outcome of the decisions made on the breaches committed.
However, given the Claimant’s previous good record, I recommend the written warning be reviewed after the 16 January 2016.
- I have considered the submissions made by the parties. The Respondents were within their rights to reconsider the previous incident between the parties as it provided a pattern of behaviour on behalf of the Claimant. It also showed that the apology given at that time was insincere as the Claimant continued in his behaviour after this. The Respondent is legally liable to provide a safe working environment including protection from unacceptable behaviour between employees. Therefore, they had no choice but to treat the incident with the utmost concern.
The Union on behalf of the Appellant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 17th February 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 29th March 2016.
UNION’S ARGUMENTS:
3. 1. The Company did not follow fair procedures and natural justice.
2. The Company relied on data or information which was obtained in a breach of the Appellant's right to privacy.
3. The Appellant was treated differently to his colleagues.
EMPLOYER’S ARGUMENTS:
4. 1. The text messages were sent approximately one week after the first incident. This showed a pattern of behaviour towards his colleague.
2. The Appellant went through the formal grievance procedure and appealed the decision to the Head of Operations who upheld the decision.
3. The decision to demote the Appellant was just and equitable given the circumstances and the fact that he held a managerial position at that time. The other colleagues went through the informal process.
DECISION:
This is an appeal by the Appellant against the recommendation of an Adjudication Officer / Rights Commissioner made under the Industrial Relations Acts 1946 to 2015 (the Act).
The Appellant had claimed before a Rights Commissioner / Adjudication Officer that the penalty applied to him following exhaustion of the internal grievance procedure of OCS One Complete Solution T/A Outsourced Client Solutions (the Respondent) was disproportionate and too severe. The Adjudication Officer / Rights Commissioner, in a decision dated 18thJanuary 2016, recommended that the penalty imposed on the Appellant should be adjusted such that the final written warning issued to him should be reviewed after 16thJanuary 2016.
The Court has considered carefully the written and oral submissions of the parties. A range of issues have been raised before the Court as regards the conduct of the Respondent’s internal grievance procedure and as regards the information considered by those conducting that procedure on behalf of the Respondent.
The Court considers the events at the centre of this matter to be very significant and is of the view that any response to proven incidents such as those described would rightly be severe. The Court, in the interest of both parties, considers it appropriate to deal with this matter as an industrial relations matter as referred under the Act. In that context therefore the Court has considered the gravity of the matters at issue and the proportionality of the penalty imposed.
Recommendation
The Court recommends that the written warning issued to the Appellant should be reviewed with effect from 16thJanuary 2016. The Court also recommends that the Appellant should be restored to his former grade with effect from 16thJune 2016 or as soon as possible thereafter. The decision of the Adjudication Officer / Rights Commissioner is varied to that extent.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
4th April, 2016.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.