FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ST PATRICK'S MENTAL HEALTH SERVICES - AND - GEORGE KEENAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal Of Adjudication Officer Decision No: r-156569-ir-15
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 30th of March 2017 the Adjudication Officer issued the following Recommendation:-
"I note that the Complainant has been given three options as set out above in the Respondent's submission. I find that these options constitute a reasonable approach to resolve this matter. I find that these three options give him a clear position on what is available and that if he does decline the offer the only option open to him is redundancy
I recommend that the Complainant should consider the three options offered and choose one of them."
The employee appealed the Adjudication Officer’s Recommendation to the Labour Court on the 10th July 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 8th September 2017.
DECISION:
This is an appeal by the Union on behalf of a worker of an Adjudication Officer’s Recommendation in which the worker sought to retain his current duties in circumstances where the employer is stating that the role is redundant. The Adjudication Officer did not uphold the complaint and recommended that the worker consider the three options offered and choose one.
The employer’s position is that following the retirement of the Head Gardener in 2013 a decision was taken to out-source the heavy duty aspects of gardening. This they argued resulted in the role currently being carried out by the worker becoming redundant. However, there is a role available as a General Operative and the employer is prepared to consider redundancy or a transition to the General Operative role with the option of redundancy remaining available for six months.
The employer did not accept that any guarantees had been given to the worker in relation to his gardening duties and indicated that they could not sustain the status quo going forward. They felt that they had fully engaged with the worker and his union over an extended period of time to try and come to a mutually acceptable conclusion.
In the course of the hearing they produced a list of what they understood to be the current duties carried out by the worker. They conceded to the Court that to-date they had not sat down with the worker and gone through the duties he currently carried out and the duties they would expect him to do in the future .They had provided him with a generic list of General Operative duties a copy of which was supplied to the Court.
The Union’s position is that at the time of the outsourcing of the heavy duty gardening functions the worker was advised by a senior member of management that his duties would not be affected and that he could continue in his gardening role.
As part of their submission the union set out a list of duties which the worker currently carries out. The Union maintained these duties were not part of the out sourced work and would continue to be required to be carried out going forward. They advised the Court that nobody had discussed these duties with their member or advised how they were to be carried out going forward. They expressed concern in relation to some of the duties set out in the General Operative role in light of the worker’s medical history. They acknowledged that there had been a series of meetings however none had dealt with the specifics of the day to day duties currently being carried out and the day to day duties that he would be required to carry out going forward in the General Operative role.
The Court having considered the submissions of both parties and the oral submissions made on the day believe that for the worker to make an informed decision in relation to the 3 options available to him that a further engagement should take place. This engagement should focus on the specific set of duties that the worker is currently carrying out and which if any of these duties the employer requires to be carried out going forward. Where it is established that some or all of these duties will be required going forward they should be incorporated into the General Operative role that he is being offered and clearly set out for him. The process should be cognisant of recommendations made in the medical reports that the employer requisitioned and should take no more than 4 weeks from the date of this recommendation.
At that point the worker should consider the three options on offer and chose one of them
The Adjudicator’s recommendation is amended accordingly.
Signed on behalf of the Labour Court
Louise O'Donnell
22nd September, 2017______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.