FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer Decision No. ADJ-00005708.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Decision. On the 27 September 2017 the Adjudication Officer issued the following Decision:-
- I have concluded that both parties agreed as a remedy to the flawed investigation that a joint review would be undertaken by a party nominated by the Union and by the Respondent. The outcome of that review was that one element of the complaint was upheld and the Respondent has sought to deal with same through the counselling stage of the disciplinary procedure. I cannot accept that I have any jurisdiction adjudicate on the findings of the review. Furthermore I do not find that the review was in any way perverse. I have concluded that both parties bought into a process as a remedy to the initial investigation and must now be bound by the outcome of that process. I am satisfied that the Respondent has acted reasonably in accepting that outcome of the review and I recommend that the claimant do likewise. Accordingly I do not uphold the complaint.
The Employee appealed the Adjudication Officer’s Decision to the Labour Court on the 26 October 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 22 February 2018.
DECISION:
This case is an appeal by a worker of the decision of an Adjudication Officer. The issue in dispute between the parties is the Employers decision to require the Worker to attend pre-disciplinary counselling arising from a report that was found to be flawed.
The Union’s position is that the report the employer is relying on was fundamentally flawed and that this was confirmed by two independent reviewers agreed by the parties. In those circumstances the report in its entirety should be set aside. The second issue raised by the Union was the loss of earnings incurred by the Worker in circumstances where management accepted that there was no disciplinary sanction applied to the Worker.
The Employers position is that while there were issue with the report they felt that there was one issue which could be relied on and which in their opinion merited pre-disciplinary counselling. They did not dispute the fact that they had received correspondence from one of the reviewers reflecting the fact that it was the joint view of the reviewers that the report was flawed. No response issued from the Employer disputing that fact. In relation to the loss of income the Employer accepted that the worker while temporarily reassigned to alternative duties should not have suffered a loss of income.
The Court having considered the detailed submissions of both parties and the oral submissions made on the day finds that when it was agreed that the report was flawed nothing further should have emanated from that report. The process should have ended at that stage. The Court recommends that the report in its entirety as it applies to this worker be set aside and that the Worker be returned to his original duties. In order to facilitate a smooth return to duty the Employer should provide the Worker with appropriate refresher training. The Court also recommends the payment of €12,500 compensation in full and final settlement of all losses to-date. This amount to be paid as soon as is reasonably practical.
The Adjudicator Officers recommendation is set aside.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
LS______________________
09 March 2018Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Louise Shally, Court Secretary.