LCR21229

FULL RECOMMENDATION CD/15/372 DECISIONNO.LCR21229 r-153510-ir-15/JOC INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : VALEANT PHARMACEUTICALS IRELAND LTD T/A BAUSCH & LOMB (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr McCarthy

SUBJECT:
1. An appeal of an Adjudication Officer's / Rights Commissioner's Decision no r-153510-ir-15/JOC.


BACKGROUND:

2. This case concerns the severity of disciplinary sanctions imposed on the Worker.

• The Employer said the Worker was subject to disciplinary action for abusive conduct towards another employee which it treated as gross misconduct.

• The Union said the Disciplinary Procedures set out clearly the sanctions that can be imposed under each stage and that the penalty imposed in this case was too severe.

• This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 6th November 2016 the Adjudication Officer issued the following Recommendation:-
  • A The suspension without pay be reduced to 5 days
    
    B The claimant be restored to his original position.
    
    C That this remains active on the claimant’s file for a period of 6 months.

The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on the 24th November 2016 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court hearing took place on the 27th March 2016.

UNION’S ARGUMENTS:

3. 1. The Claimant had a clear disciplinary record for 11 years and the incident was totally out of character.

2. There is no provision in the Disciplinary Procedure for a warning to remain active for two years.

3. Moving the Claimant to another area served as a double punishment.

EMPLOYER’S ARGUMENTS:

4. 1. The disciplinary sanction that was applied arose in circumstances where the Company was treating the matter as gross misconduct.

2. The Company has obligations under health and safety legislation to ensure a safe working environment for all employees.

3. Redeployment of employees is within the Company’s prerogative and is covered in the Company/Union agreements.

DECISION:

This is an appeal by Valeant Pharmaceuticals Ireland Ltd t/a Bausch and Lomb (the Appellant) against a recommendation of a Rights Commissioner / Adjudication Officer in a claim made by the Claimant under the Industrial Relations Acts 1990 to 2015.

The Rights Commissioner / Adjudication Officer recommended that the period of suspension of the Claimant should be reduced to five days, he should be restored to his original position and that the warning issued to him should remain active on the Claimant’s file for six months.

Background

The Claimant, as a result of certain events occurring between him and another employee, was found by the Appellant to have been guilty of gross misconduct. The Appellant, by letter dated 12^thSeptember 2014, advised the Claimant that he would be suspended from work without pay from 15^thSeptember 2014 until 31^stOctober 2014 and placed on probation for a period of two years. That letter also advised the Claimant that on his return to work he would not return to the FILM manufacturing process.

Position of the Parties

The Appellant

The Appellant asserted to the Court that the behaviour of the Claimant was such that a sanction at a very serious level was warranted. The Appellant stated that it had dealt with the matter in accordance with its procedures and that the sanction applied was in accordance with that procedure where gross misconduct is found to have occurred.

The Appellant stated to the Court that the decision to redeploy the Claimant to an area away from FILM manufacturing was not taken as part of the disciplinary sanction. The Appellant stated that the redeployment of the Claimant was part of its overall response in order to ensure that further incidents of the nature which gave rise to disciplinary sanction were not facilitated. The Appellant laid emphasis on its obligations to ensure a safe and healthy workplace for all employees. The Appellant requested the Court not to put the Appellant in a position of being in breach of its statutory and common law duty in that regard.

The Claimant

The Claimant accepted the recommendation of the Rights Commissioner / Adjudication Officer. The Claimant contended that the disciplinary sanction proposed by the Appellant was too severe and was outside the provisions of the procedures applying in the Appellant company. The Claimant contended that the decision to redeploy the claimant was a part of the disciplinary sanction applied.

Discussion

The Court has carefully considered the written and oral submissions of the parties.

The Court must accept that the responsibility for ensuring a safe and healthy work environment rests with the Appellant. The Court, in that light, cannot disregard an assertion by the Appellant that the redeployment of the Claimant was an action taken in pursuance of its obligations at statute and common law as regards health and safety.

The Court notes that the Claimant does not accept that there is any health and safety issue which would give rise to redeployment of the Claimant. The Court notes that the practice of the parties in the area of health and safety is, against the background of the acknowledged statutory and common law obligations of the Appellant, to engage locally whenever there is disagreement on health and safety matters.

The Court recommends that, in light of the Appellant’s submission to the Court, the matter of the Claimant’s redeployment should be dealt with as a health and safety matter and not an industrial relations matter. The Court recommends that, if they consider it necessary and appropriate, the parties should engage at the appropriate health and safety forum to consider the health and safety issue adjudged by the Appellant to require the redeployment of the Claimant.

The Court has considered the matter of the disciplinary sanction applied to the Claimant. Taking account of all the circumstances the Court considers the sanction proposed by the Appellant to be disproportionate. The Court therefore recommends that the Claimant’s unpaid suspension should be reduced to seven days. The Court further recommends that the sanction and related warning should remain active on the claimant’s file for a period of six months following the application of the sanction.

The recommendation of the Rights Commissioner / Adjudication is varied accordingly.

Signed on behalf of the Labour Court



Kevin Foley
CR______________________
13th May, 2016.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.