INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SISTERS OF CHARITY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR9385/02/LM.
2. The appeal concerns a worker who has been employed as a Care Attendant since 1996. He transferred to the Barge Project as Barge Operator in July, 2000, and continued to work in that post (which carried an enhanced rate of pay) until March, 2002. In November, 2001 the Organisation held a competition for the position of Co-ordinator/Manager of the Barge Project. The claimant applied for the position but was not successful in his application. The Union claimed that the worker was unfairly treated by being removed without notice from his Barge Operator position back to his original position as Care Attendant. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 26th November, 2002 the Rights Commissioner issued her recommendation as follows:
"I find the Organisation of the Sisters of Charity acted reasonably, given all the circumstances. The claim on behalf of the worker fails"
(The worker was named in the Rights Commissioner's recommendation).
On the 5th December, 2002 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 25th June, 2003.
3. 1. An initial job description was developed for the claimant's job of Barge Operator but the duties expanded over time resulting in the claimant's having 'de facto' overall control on a day to day basis.
2. The new position and that of the claimant were very similar in terms of responsibility. The worker expressed his concerns that the new position was, to all intents and purposes, his current post. Management acknowledged that the worker's role would be changed significantly but made no effort to establish what the claimant's fears were on this issue. Management failed to provide the claimant with any support in the post interview environment of confusion and embarrassment.
4. Although the claimant liaised with Management twice weekly he was not advised or reassured with regard to his Barge Operator's position and its continued viability, from his perspective.
5. The claimant was invited to a meeting in April, 2002 and understood that the Barge Project would be discussed. He was advised that he was being removed from his position. This was done without notice of intent and despite repeated appeals by the Union to Management.
6. Management has stated the worker requested a transfer. No mention of this is made in any correspondence. The Union has been unable to obtain any copy of a contract extending beyond 31st July, 2001.
7. The Union seeks the reinstatement of the claimant as Barge Operator retrospective to 5th April, 2002 and an award of €5,000 in respect of trauma, distress, embarrassment and damage to his reputation, resulting from the inappropriate actions of the Employer.
4. 1. On 27th November, 2001 the claimant informed Management that he did not wish to remain on the Barge Project. He was, therefore, reassigned to his former role as Care Assistant. The decision was finally made and communicated to the claimant in April, 2002 following a number of meetings during which time he insisted that he did not wish to continue on the Barge Project.
2. The claimant was advised that if there were any issues or difficulties in relation to his role as Barge Operator he could raise those issues through the Organisation's grievance procedures. He did not pursue any matter through the grievance procedures.
3. The Organisation did not ignore due process in reverting the claimant back to his original post as Care Assistant. A considerable amount of time was afforded to the claimant before this occurred.
4. The Organisation rejects any claim for monetary compensation. It is without justification and serves to set a precedent for compensating workers who voluntarily seek to transfer to other roles within the Organisation.
Having considered the submissions of the parties the Court is satisfied that the conclusions and recommendation of the Rights Commissioner is reasonable.
Accordingly, the recommendation is affirmed and the appeal disallowed.
Signed on behalf of the Labour Court
7th July, 2003______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.