Labour Court Database __________________________________________________________________________________ File Number: CD86780 Case Number: AD8697 Section / Act: S13(9) Parties: DUBLIN CO. CO. - and - FWUI |
Appeal, by the Union against a Rights Commissioner's recommendation No. CW 151/86 concerning the dismissal of one general operative.
Recommendation:
5. The Court is of the view that in all the circumstances of
this appeal it would not be justified in altering the Rights
Commissioner's recommendation and accordingly rejects the appeal.
The Court so decides.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD86780 THE LABOUR COURT AD97/86
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. AD97 OF 1986
PARTIES: DUBLIN COUNTY COUNCIL
AND
FEDERATED WORKERS' UNION OF IRELAND
Subject:
1. Appeal, by the Union against a Rights Commissioner's
recommendation No. CW 151/86 concerning the dismissal of one
general operative.
Background:
2. The worker entered into employment at the Council's drainage
depot in Swords in 1978 and was subsequently transferred to the
nearby waste water treatment plant. Following difficulties which
arose regarding his conduct and attendance the Council decided to
dismiss the worker with effect from 16th February, 1983. However
his dismissal was deferred pending investigation by a Rights
Commissioner. The Rights Commissioner recommended that he be
suspended for four weeks without pay and be issued with a final
warning regarding his conduct and attendance at work. He further
recommended that any further sustainable cause for complaint by
the Council against the worker for a period of one year would
merit dismissal. This recommendation was accepted by the Council
and the worker was advised of this on 1st March, 1983. He was
also issued with a final warning. Following further difficulties
the Council dismissed the worker effective from 10th September,
1986. The Union sought a Rights Commissioner's investigation and
this took place on 5th September, 1986. On 10th September the
Rights Commissioner recommended as follows:-
" I recommend that the Union accepts that the decision of the
County Council to dismiss is correct, and that it be carried
out in conformity with the specific legislation. "
The Union appealed this recommendation under Section 13(9) of the
Industrial Relations Act, 1969 to the Labour Court. The Court
heard the appeal on 13th November, 1986.
Union's arguments:
3. (i) Following the worker's return to work in 1983, after
suspension, a very normal situation existed for about
two years. He was entrusted with responsibility for
the whole works on a number of occasions in the
absence of the supervisor. The deterioration in this
situation is attributable to two developments.
Firstly, the worker's failure to secure promotion to
the position of caretaker when the vacancy arose, and
secondly to the refusal on the part of management to
accede to his request for a transfer out of the waste
water treatment plant.
(ii) The Council, in its submission to the Rights
Commissioner, cited a number of incidents which
included threatening and abusive behaviour, refusal
to comply with instructions and bad time-keeping. In
relation to the question of behaviour, a number of
heated exchanges took place between the worker and
his supervisor. The worker acknowledges that he made
remarks he should not have made. He denies any
implication that there were any serious threats made
or intended. There were also some differences
regarding disputed work, which was eventually carried
out by the worker.
(iii) With regard to absenteeism and timekeeping; an
agreement was negotiated between the Council and the
Unions in order to deal with this issue, (copy
supplied to the Court). It was not complied with in
this case as warning letters were not issued. The
worker's attendance was allowed to deteriorate
without intervention by management. Letters
concerning his position were issued on 6th May, 1985,
16th October, 1985, 18th October, 1985 and 24th
March, 1986. Of these, the letters of 6th May, 1985,
and 24th March, 1986 could be described as warning
letters. Although both of these referred to
"disciplinary action", neither raised the prospect of
dismissal.
(iv) The Union contends that management bears a degree of
responsibility in the situation because:
(a) The worker originally transferred to the plant
(which others were reluctant to) on the
understanding that he would receive
substantially enhanced earnings due to
overtime. This was not the case.
(b) Despite the complete improvement in his
approach after the suspension, his request for
a transfer was rebuffed.
(c) Management did not take any steps to arrest the
decline in his approach as provided for in the
agreement in relation to absenteeism or by way
of indication that he would be dismissed for
other misdemeanours. It appears to the Union
that management were proceeding with a view to
dismissal rather than rectification.
(v) The Union is seeking re-engagement on the grounds
that the ultimate penalty of dismissal is excessive
in all the circumstances. The worker has a wife and
child and a severe mortgage. He did not fully
appreciate the seriousness of the situation and
although deserving of a severe penalty, is not
deserving of the dismissal.
(vi) The Rights Commissioner, in his original
Recommendation, did not provide for dismissal in the
event of any further sustainable cause in future,
rather it provided for such in the event of an
occurrence over a period of one year.
Council's arguments:
4. (a) Swords treatment plant was opened in 1981 and is a
modern and efficient plant. The waste water is
contained in piped channels and tanks during the
treatment process. The plant is always kept clean and
tidy. Protective clothing such as, jackets, overalls,
boots and gloves are supplied to the employees to avoid
any physical contact with the waste water. Good clean
canteen, toilet and locker room facilities are
provided. The jobs carried out by the staff including
the worker concerned mostly consist of brushing tank
walls, channels, paths and tiles and mowing lawns,
which are not unpleasant jobs. The plant has a large
well kept grass area with a good number of shrubs and
trees. Generally any person could walk throughout the
plant without noticing any unpleasantness.
(b) In relation to the Union's point that the worker had
improved his behaviour and attendance up to 1985 which
was the period immediately following the final warning
of 1st March, 1983, this is not substantiated by the
facts (details of the worker's record of absenteesim
supplied.)
(c) The worker was unsuccessful in his application for
appointment as Caretaker in 1985. The vacancy was
advertised and filled in the normal way following
interview by an interview board set up by the County
Manager and the Council cannot accept that failure to
obtain promotion can be offered as an excuse of the
type of behaviour indulged in by the worker. The
worker's unsatisfactory attendance record and
threatening and obstructive behaviour goes back over a
period of six years during which he has been the
subject of verbal and written warnings, suspensions and
a previous Rights Commissioner's investigation. If he
regretted his behaviour he had numerous opportunities
to rectify it. The Council is firmly of the view that
he has no intention of doing so. The Council feels
that its supervisors have been more than tolerant over
the years and that the worker has exhausted any
goodwill which a reasonable employer would be expected
to give.
DECISION:
5. The Court is of the view that in all the circumstances of
this appeal it would not be justified in altering the Rights
Commissioner's recommendation and accordingly rejects the appeal.
The Court so decides.
~
Signed on behalf of the Labour Court.
Evelyn Owens
___4th__December,__1986. ____________________
A. K. / M. F. Deputy Chairman