Health Service Executive West v A Worker (Represented by Services Industrial Professional Technical Union)

• Jurisdiction: Ireland
• Judgment Date: 09 March 2018
• Judgment citation (vLex): [2018] 3 JIEC 0902
• Date: 09 March 2018
• Court: Labour Court (Ireland)
• Docket Number: ADJ-00005708 CA-00007937-001,DECISION NO. LCR21672,FULL RECOMMENDATION

Labour Court (Ireland)

FULL RECOMMENDATION

CD/17/328

DECISION NO. LCR21672

ADJ-00005708 CA-00007937-001

PARTIES:

HSE West

and

A Worker (Represented by Services Industrial Professional Technical Union)

DIVISION:

Chairman: Ms O'Donnell

Employer Member: Ms Connolly

Worker Member: Ms Treacy

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

SUBJECT:

1 1. Appeal of Adjudication Officer Decision No. ADJ-00005708.

BACKGROUND:

2 2. This matter was referred to an Adjudication Officer for investigation and Decision. On the 27 September 2017 the Adjudication Officer issued the following Decision:-

• I have concluded that both parties agreed as a remedy to the flawed investigation that a joint review would be undertaken by a party nominated by the Union and by the Respondent. The outcome of that review was that one element of the complaint was upheld and the Respondent has sought to deal with same through the counselling stage of the disciplinary procedure. I cannot accept that I have any jurisdiction adjudicate on the findings of the review. Furthermore I do not find that the review was in any way perverse. I have concluded that both parties bought into a process as a remedy to theinitial investigation and must now be bound by the outcome of that process. I am satisfied that the Respondent has acted reasonably in accepting that outcome of the review and I recommend that the claimant do likewise. Accordingly I do not uphold the complaint.

3 The Employee appealed the Adjudication Officer's Decision to the Labour Court on the 26 October 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

4 A Labour Court hearing took place on the 22 February 2018.

DECISION:

5 This case is an appeal by a worker of the decision of an Adjudication Officer. The issue in dispute between the parties is the Employers decision to require the Worker to attend pre-disciplinary counselling arising from a report that was found to be flawed.

6 The Union's position is that the report the employer is relying on was fundamentally flawed and that this was confirmed by two independent reviewers agreed by the parties. In those circumstances the report in its entirety should be set aside. The second issue raised by the Union was the loss of earnings incurred by the Worker in circumstances where management accepted that there was no disciplinary sanction applied to the Worker.

7 The Employers position is that while there were issue with the report they felt...