INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
CARTON BROTHERS LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr McGee
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner’s Recommendation r-048712-Ir-06-mh
2. This case concerns an appeal by the employer of Rights Commissioners Recommendation No r-048712-Ir-06-mh. The issue concerns a worker who has been employed by the Company as a maintenance fitter since 1977.
It is claimed that the worker was requested to carry out a task by his supervisor and was asked to have the task completed by the end of his shift. The supervisor subsequently expressed dissatisfaction at the speed at which the task was carried out and an independent assessment was carried out to see how long the job should take. It was further stated to the worker that his performance must improve. The worker then asked for an investigation into the incident by the Managing Director. The worker's position is that Management was abusive and unreasonable in its dealings with him and the subsequent issuing of a verbal warning was unwarranted.
Managements position is that the workers performance was not of the required standard and that management has the right to suggest that an improvement is necessary. It maintains that its procedures allow for sanctions up to and including dismissal if complaints are found to have been made in bad faith. It further contends that a verbal warning was appropriate in the circumstances.
The matter was referred to a Rights Commissioner who issued his Recommendation on 12th September, 2007. He recommended that the verbal warning be struck from the workers record and that he be offered an opportunity to pursue his complaint if necessary. The Rights Commissioner also recommended that in the event that the complaint was pursued, an independent conflict specialist should be engaged to process the complaint in accordance with the provisions of the Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work (HSA 2007)
On the 9th October, 2007 the employer appealed the Recommendation of the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 11th June, 2008 in Cavan.
3 1 Management should not have dealt with both the work performance issue and the workers concerns regarding unfair treatment as a single issue. This is a serious flaw in the investigation of workplace issues. The verbal warning should be removed from the worker's record on the basis of managements errors in this regard.
2 The worker has almost 30 years' service with this Company and has never had previous difficulties with regard to his performance. If Management was of the view that his performance was inadequate, it should have offered counselling/ re-training.
3 Management's practice of issuing verbal warnings when it considers complaints are made vexatiously is totally inappropriate. This will result in workers being unwilling to make complaints on the basis of warnings issued as a result. In any workplace situation, workers who feel aggrieved should have the right to address the problem..
4 1 The worker was requested by his supervisor to carry out a routine task which he failed to do. An independent assessment of the task showed that it should be done within a reasonable timeframe.
2 The worker requested an investigation into his perception that he was being unfairly treated. A subsequent investigation found that the complaint was made vexatiously and the appropriate sanction was issued by the worker.
3 The worker was afforded the right to channel his grievance through the appropriate policies in the workplace. He was aware of the possible sanctions that could be imposed if the investigation found against him.
4 The process has been concluded. It is inappropriate for the Rights Commissioner to recommend that the issue may be pursued in the future if necessary. Concession of this claim would effectively create a precedent for the Company and its employees going forward.
The Court has considered the oral and written submission made by the parties' and regrets the parties inability to resolve matters such as this.
In the view of the Court, the issues of workplace bullying and work performance should not have been considered in conjunction. In that context, the Court agrees with and upholds that part of the Rights Commissioner's Recommendation which states that the verbal warning issued to the claimant should not stand.
Using the same principle, the Court does not consider that it would be appropriate to uphold the other clauses of the Rights Commissioner's recommendation.
The recommendation of the Rights Commissioner, accordingly is upheld but varied as indicated.
The Court so decides.
Signed on behalf of the Labour Court
27th June 2008______________________
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.