INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
MARKS & SPENCER (IRELAND) LIMITED.
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR1449/00/CW.
2. The worker has been employed by the Company for 13 years as an operations assistant. In 1998, the worker raised a number of issues concerning his supervisor's attitude towards him. The Union in turn raised the matter with the Company by letter of the 16th of September, 1999, alleging bullying by the supervisor. Management agreed to investigate the complaints, and a letter issued to the worker on the 3rd of January, 2000. In it, management acknowledged that the relationship between the worker and his supervisor was unsatisfactory, and that the worker's health had suffered as a result. The letter also stated that it was the responsibility of all parties to ensure that the relationship improved. Management offered to move the worker from Grafton Street to Mary Street but he refused the offer.
The present dispute concerns 2 incidents which occurred in 2000. On the 18th of January, an operations assistant accused the worker concerned of verbal abuse (details supplied to the Court). The worker admits to having made some of the comments, including calling the operations assistant a "white shirt" and making references to the supervisor, but denies most of the allegations. There were no witnesses to the incident. The Company's Personnel Manager spoke to both parties, and the worker was issued with a formal written warning.
On the 29th of May, the Company alleges that the worker refused a request from his
supervisor to assist him to take out a truck, instead getting a temporary member of
staff to perform the task. The worker then complained to management about the
supervisor's treatment of him, while at the same time the supervisor reported the
worker for refusing to follow an order and for raising his voice. The Company claim
that there were witnesses who would back up the supervisor's version of the incident..
Following an investigation, the worker was issued with a second (final) written warning.
The Union wrote to the Company on the 14th of June requesting a list of the witnesses
to the incident but this was not supplied.
The dispute was referred to a Rights Commissioner and his recommendation issued as follows:-
" I recommend that the Union and the worker accept the Company decision in this dispute."
(The worker was named in the above recommendation).
The Union appealed the recommendation to the Labour Court on the 18th of October, 2000, in accordance with Section 13(9) of the Industrial Relations Act, 1969, and is seeking the withdrawal of the letters of warning and any compensation for any loss. A Labour Court hearing took place on the 16th of January, 2001, (the earliest date suitable to the parties).
3. 1. The Company did not respond to the worker's concerns about his supervisor (in 1998) until January 2000.
2. There were no witnesses present at the incident on the 18th of January, yet the Company was prepared to take the word of the worker who made the complaint.
3. The Company's investigation of the incident on the 29th of May was, like that of the 18th of January, incomplete. It did not interview all the witnesses, nor did it communicate with the Union on the result of the investigation.
4. The Company is in breach of its own policy of managing dignity at work. The worker has suffered financial loss and poor health as a result of the Company's failure to deal with his legitimate complaints.
4. 1. The Union only appealed the first written warning 4 months after the incident, and this was as a result of the second warning being issued.
2. The disciplinary action taken by the Company was due to the failure of the worker to adhere to the standards expected of him. He admitted making insulting comments in the first incident, and also admitted refusing to follow an order in the second incident.
3. The Company conditions of employment refer to ...'abusive and / or insulting discriminatory behaviour towards customers or colleagues which causes difficult working relationships...'. The Company made a careful investigation in both cases, and believes that the worker was guilty of such behaviour in each case.
4. The Company did not receive any medical documentation about the worker's health until after the second written warning was issued.
The Court has taken into consideration all aspects of this case. The Court is not satisfied at the manner in which the claimant's complaint regarding his supervisor was dealt with. The Company took a protracted period of time to investigate the complaint and when concluded, the Company failed to adequately deal with the outcome of that investigation. While it was found that there was no direct evidence to prove or support the allegation made against the supervisor, the Court is of the view that the Company did not do enough to deal with the acknowledged difficulties between the claimant and his supervisor, despite its commitment to ensure that the relationship should improve to an acceptable standard. Due to the lack of progress on this matter the situation festered, resulting in the claimant's ill health.
Given the point raised by the family therapist in his letter of 27th September, 2000 concerning the protracted nature of dealing with the situation, the Court recommends that the Company should seriously consider making a contribution to any medical expenses incurred.
The Court is of the view that the first warning given as a result of the 18th January, 2000 incident was warranted and should be deemed to have expired on 18th January, 2001. The second warning should be deemed to have expired simultaneously.
The Rights Commissioner's recommendation is hereby amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
14th February, 2001______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.