LCR21952

FULL RECOMMENDATION

CD/18/335

DECISIONNO.LCR21952

ADJ-00013366

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

VALEANT PHARMACEUTICAL IRELAND T/A BAUSCH AND LOMB
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms Treacy

SUBJECT:
1. Appeal of Adjudication Officer Recommendation No(s)ADJ-00013366

BACKGROUND:

2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On 18 September 2018 the Adjudication Officer issued the following Recommendation:-

“I recommend that the Worker be re-engaged in the position that he held prior to his demotion on 24 March, 2017 (i.e. that of Team Lead) on the same terms and conditions as he previously held at that juncture. This re-engagement should take effect from the date of this recommendation and the Employer shall not be obliged to retrospectively pay the Worker for the loss of salary during the period from 24 March, 2017 to the date of his re-engagement in the position of Team Lead.
I also recommend that a written warning should be placed on the Worker's file for a period of five months from the date of this recommendation in relation to the breach by him of the Employer's policy in relation to the taking of an unofficial third break during working time."

Both the Employer and the Union on behalf of the worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 25 October 2018 and 26 October 2018 respectively in accordance with Section 13(9) of the Industrial Relations Act, 1969.

A Labour Court Hearing took place on 28 March 2019.

DECISION:

The Court has given very careful consideration to the written and oral submissions of the parties.

There is no dispute between the parties as regards commission of the alleged offence. The Court finds that the offence involved was grave and justified the imposition of serious sanction.

The employer has imposed the sanction of demotion without a time limitation. The financial penalty consequently accruing to the worker is significant and potentially permanent.

The Court has taken careful note of the parties’ attempts to find resolution directly. The Court also notes that the employer has not prohibited the worker from applying for his former grade should a competition for such an appointment arise in the future.

The Court considers that, while the offence involved was very grave, the sanction imposed has the potential to be permanent and such an outcome could be considered to be disproportionate were no mitigation measures put in place.

The Court therefore recommends that the worker should be restored to his former grade should a vacancy arise between the date of this Recommendation and the five-year anniversary of his demotion. In the event that such a vacancy does not arise within that time period the worker should, on the fifth anniversary of his demotion, receive compensation for permanent loss of grade at the rate of two times the annual financial loss suffered. Nothing in this recommendation should inhibit the worker from applying for the grade whenever a vacancy might arise after the five-year period has elapsed.

Signed on behalf of the Labour Court

Kevin Foley
CC______________________
10 April 2019Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.