FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Rights Commissioner Recommendation No: r-080406-ir-09/GC
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner Recommendation No: r-080406-ir-09/GC. The issue concerns an employee of Tesco who was demoted from a management position to that of general assistant. The Employer's position is that the worker had serious communication difficulties in dealing with people whom he worked to and to those who worked to him. It is management's contention that these continuing problems and an incidence of threatening behaviour towards senior management ultimately led to his transfer and regrading within the organisation.
The Union's position is that the worker was treated very harshly by management and that the regrading resulted in a substantial loss of earnings and standing within the organisation. The Union further contends that the worker was treated inappropriately by management when trying to represent the interests of his staff and instead it was management that behaved inappropriately towards him. The Union is seeking a restoration of the management grade and retrospection on the loss of earnings.
The dispute was referred to a Rights Commissioner for investigation. Her Recommendation issued on 9th December, 2009 in which she recommended that the worker be restored to his management grade and in a suitable location for the appropriate performance appraisal. She also recommended that the worker accept any training offered by management. The Rights Commissioner did not recommend retropsective payments of loss of earnings.
On the 4th January 2010, he employer appealed the Rights Commissioners Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 14th May, 2010.
UNION'S ARGUMENTS:
3 1 The worker had been informed of errors in the payroll relating to staff in his Department. When he raised the issues with senior management, he was treated inappropriately by them at a meeting and when he responded in an assertive manner to their comments was subsequently transferred and demoted.
2 Senior management may have identified issues in relation to the workers alleged difficulties, yet it was never made clear to the worker that these difficulties would result in such a serious sanction against him. If his role within the Company was in question management should have clearly explained it to him earlier than they did.
COMPANY'S ARGUMENTS:
4 1 The worker had serious difficulties communicating with other staff members. There were many incidences of inappropriate and threatening behaviour towards staff which ultimately warranted a transfer and regrading. Management could no longer have staff feeling threatened in the course of their duties.
2 Management did not invoke disciplinary procedures against the worker earlier as it is the preferred option to support the worker and attempt to address difficulties rather than to introduce sanctions. In the instant case, management was left with no option but to demote the worker and transfer him to his current location.
DECISION:
The Court has carefully considered the written and oral submissions in this case.
The worker's behaviour towards his colleagues and managers on 14th November 2009 was unacceptable and warranted disciplinary action being taken against him by the Company. It was not clear to the Court that the worker involved fully understood the extent to which his behaviour was unacceptable.
In addition this aspect of his behaviour has been a cause for concern for several years and has not been clearly brought to his attention by the Company.
Otherwise the worker involved is well regarded as a manager and is generally considered to be effective and efficient in his work.
In all the circumstances, the Court is of the view that if the worker involved maintains a clear record between now and the second anniversary of his demotion he should then be restored to his previous grade at the first available opportunity within the Region in which he now works. He should be supported in the restored role and be provided with appropriate training to address the issues that have been revealed through this incident.
The Rights Commissioner's Recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
4th June 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.