INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
ST PATRICKS CENTRE LTD
(REPRESENTED BY IBEC)
- AND -
(REPRESENTED BY IRISH NURSES AND MIDWIVES ORGANISATION)
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Shanahan
1. Appeal of Rights Commissioners Recommendation r-115934-ir-11/JT
2. This is an appeal by the worker of Rights Commissioner's Recommendation r-115934-ir-11/JT. The issue concerns a workplace incident which resulted in disciplinary sanctions imposed on the worker, which the Union contends were excessive and without justification. The worker contends that she was removed from her position to a less senior grade and was also denied access to night shift and weekend work and the loss of related earnings. Management contends that the worker was the senior staff member on duty at the time and the sanctions imposed were necessary and appropriate in the circumstances.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 7th August 2013 and recommended that of all the sanctions imposed the final written warning should be removed.
On the 14th August 2013, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 22nd October 2013
3 1 The Union refutes management's assertions that the worker acted in an inappropriate or unprofessional manner in relation to the incident in question. The worker, as a senior member of staff, acted in accordance with her training and in line with the appropriate actions required in such circumstances. It is not accepted that the worker acted in any way inappropriately or that the sanctions which were imposed on her were in any way appropriate or warranted.
4 1 The worker fell short in many ways in the way the incident was handled and in the immediate aftermath also. In all the circumstances and having carried out lengthy investigations into the issue, Management is of the view that the sanctions imposed were reasonable and appropriate giving the serious nature of the incident.
The matter before the Court concerns the Claimant’s appeal of a Rights Commissioner’s Recommendation. The claim referred by the Claimant to the Rights Commissioner was in respect of disciplinary sanctions imposed on her in September 2011 which she contended were excessive and unfair in the circumstances. The Rights Commissioner found that there were flaws on both sides. However, he found that the sanctions imposed were excessive and he upheld some of the sanctions and recommended the removal of a final written warning.
Very lengthy and comprehensive submissions were submitted to the Court by both sides on the circumstances leading to the imposition of the disciplinary sanctions on the Claimant in this case. The Court has given serious consideration to all elements, however, due to the circumstances surrounding this case it is of the view that it is prudent not to outline the facts of the case.
Having considered the submissions made by both sides the Court is cognisant that An Board Altranais found that there was not sufficient cause to warrant the holding of an inquiry into the Claimant’s fitness to practise and recommended that no further action should be taken in the matter. The Court also notes that two Medical Doctors substantiated the Claimant’s conclusion on the morning in question. Furthermore, in relation to the final area in which the Claimant was subjected to the disciplinary sanctions the Court is of the view that the Claimant promptly reported the situation to those in superior positions and these senior members of management were present on the morning in question to handle matters and to provide the necessary comfort and support when the Claimant was otherwise occupied. Therefore the Court does not uphold the investigators’ conclusions on these three points.
However, as a senior member of Management the Court is not satisfied that the necessary protocols were in place to professionally deal with the situation which arose and accordingly upholds one of the findings of the Disciplinary Investigation issued in July 2011 in respect of the Claimant which concerned“Night Staff Communications”.
Therefore in view of these findings the Court varies the sanctions imposed on 9thSeptember 2011.
The disciplinary sanctions imposed on the Claimant on 9thSeptember 2011 included an immediate transfer from night duty to day duty, Monday to Friday, consequently she lost both night and weekend premia, however, while she was no longer working to her grade she was red-circled on her pay rate. Furthermore, the Claimant was required to undergo a training programme to be agreed in consultation with senior Management in order to enhance her skills and competencies appropriate to the roles assigned to her. The Court notes that the sanctions imposed did not include any warning. The Court also notes that the position held by the Claimant no longer exists and a new reporting system has emerged due to developments at national level in the grade.
In all the circumstances of this case the Court decides that Management should seek to find a suitable comparable position for the Claimant or alternatively a suitable alternative position in the context of the national agreement for such roles. In the meantime the Claimant should be allowed access to the weekend roster. The Court also decides that the Claimant should participate in any required training identified by Management. In view of the Court’s findings that there was an onus on the Claimant as a senior Manager to ensure that the necessary protocols were in place to professionally deal with the situation which arose, the Court does not recommend in favour of the full retrospective payments sought.
Having taken all aspects of this case into consideration the Court is of the view that half of the retrospective night and weekend premia claimed should be paid in a lump sum to the Claimant. This payment should be paid within six weeks of this Decision.
Therefore the Court varies the Rights Commissioner accordingly.
The Court so decides.
Signed on behalf of the Labour Court
18th Novemebr 2013______________________
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.