AD0120

FULL RECOMMENDATION CD/00/511 APPEAL DECISIONNO.AD0120 (IR346/00/GF) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DELL DIRECT (REPRESENTED BY A & L GOODBODY, SOLICITORS) - AND - D.J. CRONIN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal against Rights Commissioner's Recommendation IR346/00/GF.


BACKGROUND:

2. The worker commenced employment with the Company on the 9th February, 1998 as a Technical Support Associate (TSAI). His main function was to provide after sales and technical support services. The worker claims that he was bullied and harassed by management and as a result his health has been affected. He is at present on certified sick leave.

The Company rejects any allegations of bullying or harassment. It claims that the worker was given comprehensive on the job training but failed to reached the standard required by the Company.

The worker referred the dispute to a Rights Commissioner for investigation. A Rights Commissioner's hearing took place on the 5th May and the 4th September, 2000. The Right Commissioner recommended as follows:-

"I believe his job is very important to him.

I accept that the performance testing is not identical to that of his colleagues. In the absence of any company assistance programme, I am recommending that the claimant be allowed to resume work, performing his normal duties, which will not have the adverse effect on his health the previous one has had."

The worker appealed the recommendation to the Labour Court on the 9th October, 2000 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th December, 2000.


DECISION:

The Court heard an appeal of the Rights Commissioner's recommendation, on behalf of the employee. As this recommendation was acceptable to the employee, this appeal essentially sought its implementation. The Company did not appeal the Rights Commissioner's recommendation.

At the hearing the Company indicated that they were willing to implement the recommendation, therefore, the Company were requested to outline to the Court, details of the actions it intended to take. Having received such details from the company the Court is satisfied that the Company propose to reintegrate the employee back into the workforce. However, the suggested performance reviews and timescales do not meet the spirit of the recommendation.

The Court accepts that the Company has a right to expect a performance standard of all its employees. However, in this case, due to the severity of his health problems, a much lower
performance standard than normal, at least initially, needs to be put in place in order to facilitate his
reintergration. In setting such standards, the Company should consider availing of the services of a qualified/experienced employment counsellor to mediate and/or monitor the claimant's healthy reintergration into the workforce. While the Court is not making any recommendation on the suitability of the position the employee will return to, the Court is of the view that a gradual performance assessment process needs to be put in place.

The Court so decides.



Signed on behalf of the Labour Court



Caroline Jenkinson
27th March, 2001______________________
LW/LWDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.