FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NEYLON FACILITY MANAGEMENT LTD (REPRESENTED BY ALASTAIR PURDY & CO., SOLICITORS) - AND - CELINE MCDONNELL (REPRESENTED BY MACKAY SOLS) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Re-Instatement
BACKGROUND:
2. This dispute concerns re-instatement. The Worker referred this case to the Labour Court on 11 November 2019 in accordance with Section 20 (1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s Recommendation. A Labour Court hearing took place on 15 January 2020.
WORKER’S ARGUMENTS:
3. 1. The Worker was disciplined by the Respondent prior to the conclusion of the investigative process.
2. The Worker was not given an adequate opportunity to prepare a defence.
3. The Worker has been victimised, punished and subsequently ignored by the Respondent.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker was never dismissed; rather she was moved from one workplace to another.
2. The Employer’s ability to move the Worker from one place to another is expressly provided for under the Worker’s Contract of Employment.
3. The Worker is at no loss of pocket as her Terms and Conditions remain the same.
RECOMMENDATION:
Background to the Dispute
The Worker has been employed by Neylons Facility Management (‘the Company’) for over five years. She held the position of Head Chef at a named nursing home which is a client of the Company until management purported to remove her from that position and relocate her to a position with a different client in January 2019. The Worker had been directly employed by the aforementioned nursing home for approximately seven and a half years prior to being made redundant. When the Company secured the contract to provide facility services to the nursing home, the Worker was engaged by the Company, initially as a Chef, and was subsequently promoted to the position of Head Chef. The Company operates a Management Academy in which the Worker was enrolled and through which she benefitted from various management training opportunities.
An incident occurred at the nursing home on Christmas Day 2018. The Worker commenced work at 7.30 am that day. From 10.30 am she was assisted by a Kitchen Assistant. The Kitchen Assistant presented a glass of wine to the Worker in the course of the morning and invited her to toast to Christmas. The remainder of the Worker’s day was without incident. She completed her duties and, having greeted the residents, left for home at approximately 1.20 pm. The Worker was informed by a colleague later that day that the Catering Assistant had become drunk in the workplace.
The Company proceeded to investigate the events of Christmas Day in the nursing home. The Worker attended a meeting on 7 January 2019 at which she gave her version of what had taken place during her shift on 25 December 2018. The Worker accepted that she had toasted Christmas with the Nursing Assistant but denied knowing that she had continued drinking throughout the course of her shift. A second meeting took place with the Worker on 17 January 2019. The Worker was informed that management at the nursing home did not want the Worker retained in her position as Head Chef there and, for that reason, the Company had decided to apply the mobility clause in in her contract of employment to relocate her to another location with a different client. The Worker went on sick leave with effect from 18 January 2019.
The Worker is seeking ‘reinstatement’ to her position as Head Chef at the named nursing home and compensation for loss of earnings to date. She also seeks to have her access to the Company’s Management Academy restored. The Company submits that it acted reasonably in all the circumstances in deciding to relocate the Worker having regard to what occurred at the nursing home on 25 December 2018. It further submits that its offer of alternative employment was appropriate and reasonable and would not have resulted in any financial detriment to the Worker.
Recommendation
The Court recommends that the Worker be offered the next Head Chef role that becomes available with any client of the Company in an area that is geographically appropriate for the Worker. The Court further recommends that the Worker’s access to the Company’s Management Academy is restored without delay. Finally, the Court recommends that the Company pay compensation of €10,000.00 to the Worker for the arbitrary and unreasonable manner in which it purported to exercise the mobility clause in her contract of employment.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
MK______________________
18 February 2020Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Mary Kehoe, Court Secretary.