FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FINGAL COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY JAMES CODY & SONS SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-070348-Ir-08.
BACKGROUND:
2. The worker is employed as a Senior Executive Process Controller and has been employed for 27 years by the Council. The worker was told on the 23rd June, 2008, that he was to transfer to the Malahide work treatment plant. He refused to go and was on certified sick leave (by his doctor) until 6th October, 2008, citing stress. The worker was required to attend the Council's occupational health consultant who did not support the doctor's medical certificate. The worker was informed that he would not be paid beyond the 13th July, 2008. A second consultant supported the opinion of the Council's consultant. The worker made a number of complaints against the Council, three at the Rights Commissioner's hearing and six at the Labour Court hearing. The complaints included bullying and harassment (although this was later clarified as discrimination), claims for sick pay and 116 hours overtime, and failure by the Council to follow proper procedures in investigating the complaints. The worker also claims that he was discriminated against in relation to attending courses. The Council replied to the worker in a letter dated 10th July, 2008, addressing his concerns.
The case was referred to a Rights Commissioner and his decision was as follows:
"I have carefully considered the submissions of the parties and am not in a position to recommend in favour of the claimant.
I uphold the respondents right to conduct a preliminary investigation of the matters complained of in an effort to establish a prima facie case of bullying. I consider this type of approach judicious in these cases and do not consider that the respondent has refused to implement its existing anti-bullying policy as complained.
The claimant has not proven his allegation concerning the unlawful withholding of sick pay as a device to force him to abandon his bullying complaint against one of the respondent's senior personnel (the medical evidence is paramount in this matter).
The claimant has not been penalised in my opinion (the medical evidence is paramount in this matter), however in the event that penalisation were to occur in the future it would be open to the claimant to complain under the relevant Code of Practice.
Having said all of the above I wish to note that the alleged aggressor in this case has a priority right to his good name and will have suffered some distress and anxiety as a result of these complaints against him. I believe that the claimant however misconceived, genuinely believes that he has been bullied and I have no doubt that these events will have caused great distress to himself and his family.
I recommend therefore that in an effort to resolve the residual matters arsing in this case the respondent would subject to request provide counselling facilities to both parties (complainant and alleged aggressor) as apropriate.
The worker appealed the decision to the Labour Court on the 4th June, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A labour Court hearing took place on the 9th September, 2009.
WORKER'S ARGUMENTS:
3. 1. The worker's claim for €4,600 overtime was refused as he was told that he submitted the claim too late. No such rule for submission of overtime existed at that time and other employees who submitted "late" overtime claims were paid.
2. The worker was seriously affected by the unilateral move to Malahide. He became physically unwell and was unable to continue at work although he was certified unfit to work by his doctor. As a result he was not paid sick pay for a number of months.
COUNCIL'S ARGUMENTS:
4. 1. The Council has behaved in a fair and reasonable manner with the worker at all times and his complaints have been fully investigated, both internally and by the Rights Commissioner.
2. The worker was absent for 11 weeks on sick leave following a reasonable instruction to transfer to Malahide. He was one of a number of employees who moved in similar circumstances but was the only one who had a problem.
3. The worker was not treated differently to other employees in regard to issues of sick pay or overtime and he has not been able to provide any evidence to prove otherwise.
DECISION:
The Court has considered the considerable oral and written material supplied to it by the parties.
In the view of the Court, the Recommendation of the Rights Commissioner was correct on the matters put before him. The Court endorses that Recommendation and so decides.
The Court is also of the view that the process as outlined in the Council's letter of 10th July, 2008, for claiming overtime, and further agreed at the Rights Commissioner's hearing for going forward on this, should be adopted and implemented by the parties.
The Council's position on training courses was, in the view of the Court, a reasonable one.
Signed on behalf of the Labour Court
Raymond McGee
28th September, 2009.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.