INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
DAUGHTERS OF CHARITY OF ST. VINCENT DE PAUL
(REPRESENTED BY BCM HANBY WALLACE)
- AND -
(REPRESENTED BY IRISH NURSES ORGANISATION)
Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR8719/02
2. The worker is employed by the Daughters of Charity of St. Vincent de Paul, as a nurse, in the Skills Development Unit for over 32 years. She works directly with thirty clients who have an intellectual disability in the promotion of training and vocational needs. On 9th January 2002 the worker was placed on paid suspension pending an investigation by her employer on foot of a verbal complaint. Following the investigation, disciplinary sanctions were imposed:
- A final written warning (indefinite time);
- Transfer from the Skills Development Unit to a Residential Care Unit;
- Unpaid suspension for two weeks.
The issue was referred to a Rights Commissioner for investigation and recommendation. On the 20th of September 2002 the Rights Commissioner issued her Recommendation as follows:-
"I recommend that the suspension and re-location elements of the disciplinary sanction be removed, leaving only the final written warning. In accepting this recommendation, the worker must commit in writing to make every effort to reconcile difference with colleagues and to participating in any training programmes identified by management. There should be a managed reconciliation process between the worker, other staff and clients and the management should take responsibility for same"
(The worker was named in the Rights Commissioner's Recommendation)
The Organisation appealed the recommendation to the Labour Court on the 29th October, 2002 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 25th March 2003, the earliest date suitable to the parties.
- 3.1 The matter before the Court by way of appeal against the Rights Commissioner's Recommendation in which, although finding that "there is cause for concern on the part of the employer in terms of the managementby the worker of her relationship with other staff and clients",she recommended that the suspension and relocation elements of the disciplinary sanctions be removed, leaving only a final written warning in place. Management, because of the seriousness of the situation, had initially considered dismissing the worker. However, they took cognisance of her long service and representations that had been made on her behalf and decided against dismissal in favour of relocation.
2. Because of the specific circumstances of the case Management decided to relocate her. They moved the worker to a nursing position within a residential unit that would be subject to daily supervision and monitoring. Management have a duty towards the intellectually disabled for whom they care and conclude that they were duty bound to remove the worker from the Skills Development Unit
3. Management accept the Rights Commissioner's recommendation that there should be "a managed reconciliation process between the Worker and other staff and clients and the management should take responsibility for same"
4. It is essential from Management's point of view and the standing integrity of the service that they provide, that the decision to relocate the worker be appreciated and approved and that the suspension remain in place.
4.1 The worker has been employed as a nurse for over 32 years. In all these years she has never had any disciplinary action taken against her. The manner of professionalism she applied to her work is outlined in a reference from a former manager.
2. The penalties that were imposed far outweigh the findings of Management's investigation. Her current terms and conditions of employment allow her to work Monday to Friday. A move to a residential unit will entail weekend and shift hours including night duty. The relocation of the worker from the Skills Development Unit would ultimately mean the end of her employment with the Daughters of Charity and could mean the end of her career. Seeking other employment will be difficult given the unresolved conflict.
3. The worker fully acknowledges that she has an essential role to play with others in rectifying the problems identified and is willing to commit in writing to make every effort to reconcile differences with colleagues and to participate in any training programmes identified by Management. The mechanism for achieving this reconciliation is through a managed mediation process. This will not be met, especially by moving people within that organisation.
In upholding the decision to impose a final written warning on the claimant the Rights Commissioner implicitly accepted that she had been guilty of serious misconduct. Further, the Rights Commissioner expressly accepted that the investigation conducted by management was reasonable. These aspects of the Rights Commissioner recommendation were not appealed.
With regard to the decision to transfer the claimant to another unit, the Court can appreciate how this decision could be perceived as a disciplinary sanction. Whilst the transfer was decided upon in conjunction with what were undoubtedly disciplinary measures, its main object or purpose was to maximise client care. It is, in the Court's view, the prerogative of the Organisation to determine such questions and in the circumstances of the present case the Court would not regard it as appropriate to interfere with a decision bona fide taken by the management of the Centre on what is in the best interests of its clients.
Since, in that context, the transfer cannot be properly regarded as a disciplinary sanction it follows that any loss accruing in consequence of the transfer should be minimised. It is noted that the Organisation is prepared to have discussions with the Union in that regard. This offer should be accepted by the Union.
The Court concurs with the other aspects of the Rights Commissioner's conclusions and recommendations and proposes that they be upheld.
Subject to the modification that the claimant accept the transfer proposed and that the Management and the Union enter into negotiations in respect of any loss suffered in consequence, the Recommendations of the Rights Commissioner is upheld.
Signed on behalf of the Labour Court
2nd April, 2003______________________
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.