INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
CLARE COUNTY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD)
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation IR12390/02/MR (Double appeal)
2. The dispute before the Court concerns an appeal by both the County Council and the Union of a Rights Commissioner's Recommendation relating to a claim by the Union on behalf of its member, herein referred to as "the worker", of alleged denial of fair and equitable procedures in relation to allegations made by another member of staff. The Union contends that the Recommendation did not deal with all of the matters in dispute, in particular payment of medical fees and also that the Council is misinterpreting the Rights Commissioner's Recommendation. The Council is seeking the Court to review and vary the recommendation in light of some discrepancies in the Rights Commissioner's findings.
- The matter was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 5th May, 2004, as follows:
- “The Council should agree to write to the worker confirming the high esteem in which they hold her, confirming that it was never their intention to cause her any distress, and confirming that the withdrawal of the allegations against her means that, from the Councils perspective, the situation is as if these allegations had never been made;
- The Council should also, as an exceptional measure, agree to pay the worker a once-off ex gratia lump sum of €2,000 as a gesture of goodwill and in recognition of any distress that she suffered as a result of these events;
- The worker and her Union should accept the above in full and final settlement of all matters in dispute between the parties"
- The worker was named in the Rights Commissioner’s Recommendation.
On the 14th June the Council appealed the Rights Commissioner’s Recommendation and on the 15th of June, 2004 the Union appealed the Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th September, 2004.
UNION'S ARGUMENTS:3. 1. In it's submission to the Rights Commissioner the Union stated that payment of counselling fees and expenses for the worker had incurred and requested that the worker be entitled to six months full pay in the event of sick leave excluding the three months absence as a direct result of workplace stress. The Rights Commissioner did not make any recommendation in respect of the payment of medical fees or the future entitlement to sick pay.
2. The Rights Commissioner did not disagree with the County Council's position that it was inappropriate for an external body ( Labour Relations Commission ) to deal with the issue when the local machinery had not been utilized. There was no mention of it in his findings.
3. The Unions never alleged that the Council's procedures were flawed but did complain that the manner in which the issue was dealt with was not in accordance with the Council's own procedures. This caused undue stress to the worker. The Rights Commissioner clearly found that Clare County Council did cause distress to the worker by allowing the issue to remain in dispute for such a long time.
4. 1. The recommendation of the Rights Commissioner is based on flawed findings namely:
- a. That Clare County Council's response was 'over the top' in dealing with this matter, while accepting that the response was intended as a fair and reasonable attempt to deal with the comments.
b. That Clare County Council allowed the issue to remain in dispute for such a long time clearly contributed to the workers distress while acknowledging that the Union could have brought the matters to a close instead of insisting on an investigation of allegations that had been withdrawn.
3. Clare County Council's intention was always to be fair to both parties in this issue. This was agreed by the Rights Commissioner, though he did criticise aspects of the Council's actions in trying to resolve the matter. The approach in dealing with this allegation was not 'over the top' and complied with previous Labour Court Recommendations and with good practice. The County Council was not responsible for the distress caused to the worker as a result in delays in processing the allegation. The delay was caused by issues with and within the Trade Union.
Having given careful consideration to the written and oral submissions of the parties, the Court is satisfied that the County Council did not follow their own procedures in relation to the allegations made against the worker. It is the opinion of this Court that undue consideration was given to the rights of the complainant at the expense of the worker and that concerns raised by the complainant were, without foundation, given the status of a formal complaint.
Therefore, the Court finds in favour of the Union's appeal of the Rights Commissioner's recommendation and dismisses the County Council's appeal.
The Court decides that the County Council should write to the worker as recommended by the Rights Commissioner and should agree to pay her the sum of €4,360 as a gesture of goodwill, in recognition of any distress that she suffered as a result of the events and for the medical expenses incurred. In the event of it becoming necessary, the worker's sick pay entitlements should not be effected as a result of entitlements already received during her absence over the period covered by these events. The worker and her Union should accept the above in full and final settlements of all matters in dispute between the parties.
The Court so decides.
Signed on behalf of the Labour Court
23rd September, 2004______________________
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.