Labour Court Database __________________________________________________________________________________ File Number: CD86677 Case Number: AD8692 Section / Act: S13(9) Parties: BARRETTS WAREHOUSING & DIST LT - and - ITGWU |
Union appeal against a Rights Commissioner's Recommendation CW124/86 concerning the dismissal of a worker.
Recommendation:
7. The Court, having considered the submissions made by the
parties, is not satisfied that sufficient evidence has been
advanced to demonstrate an involvement by the appellant in the
incident. The Court accordingly decides that the Rights
Commissioner's Recommendation should be amended to provide that
the appellant should be allowed to complete his six months'
probation and that his future with the Company could then be
assessed.
The Court so decides.
Division:
Text of Document__________________________________________________________________
CD86677 THE LABOUR COURT AD92/86
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 92 OF 1986
Parties: BARRETTS WAREHOUSING AND DISTRIBUTION LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Union appeal against a Rights Commissioner's Recommendation
CW124/86 concerning the dismissal of a worker.
Background:
2. Both the appellant (whose duty it was to load goods for
delivery to customers), and a fellow worker were dismissed by the
Company in June, 1986, following an investigation by Management
into incidents of alleged attempted theft. The reason given for
both dismissals was that Management felt it could no longer place
total confidence in the honesty and integrity of the workers
concerned.
3. On the 10th/11th June, 1986, the appellant assembled a load of
Colgate products which was due to be delivered to a customer in
Longford on the night of the 11th. It later transpired that the
load was five cases short. On Friday, 13th June, a further load
of Colgate was prepared for delivery to a customer in Limerick.
This load, like the Longford one, was to be delivered by one of
the Company's sub-contracting firms. Late on that Friday evening
the driver from the sub-contracting firm, who had earlier called
to the Company's premises to collect the load, informed the
Warehouse Manager that he had been approached by the other worker
who was subsequently dismissed, and was asked if he would take
five cases of soap which were on a pallet for Limerick, out of the
warehouse. The driver was told that either the other worker or
the appellant would collect the goods later at his (the driver's)
house. The driver refused to do this. The load was delivered to
Limerick on Monday, 16th June, and was found to have five cases
too many. On the following morning (June, 17th) the other worker
involved called to the driver's house to collect the soap but was
told that the driver did not have it. On the 18th June, the
driver informed Management of this incident. On the 23rd June,
Management held separate meetings with both workers and advised
them of the irregularities regarding the loads to Longford and
Limerick plus the allegations made by the driver of the
sub-contracting firm. Both men denied any knowledge of or part in
any of the incidents. Both were suspended with pay while the
Company investigated the matter further. Further separate
meetings were held with the two men on Thursday, 26th June, at
which they again denied any involvement in the incidents. As
Management was of the opinion that neither had offered any
satisfactory explanations and as it felt it could no longer have
any confidence in their honesty and integrity they were dismissed.
The Union held a meeting with Management on the 30th June to
discuss the case but failed to persuade Management to change its
decision.
4. The Union subsequently referred the matter to a Rights
Commissioner for recommendation. The appellant's case was heard
under the Industrial Relations Act, 1969, while the other worker's
case was heard under the Unfair Dismissals Act, 1977. The Rights
Commissioner, having heard the case on the 22nd July, issued the
following recommendation on the 8th August, 1986.
"I recommend that both claims fail and that the
dismissals were fair."
On the 15th August, the Union, on behalf of the appellant,
appealed the recommendation to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. A Court hearing into
the dispute was held on the 13th October, 1986, the earliest date
suitable to the parties.
Union's arguments:
5. (a) The Company has had consistent problems of theft down
through the years and it is on record that the Union
has pointed out to Management that non-staff have easy
access to many parts of the depot.
(b) Prior to the appellant's dismissal, a number of cases
of Colgate were found during a clean-up of the
warehouse. The finding of these goods does not prove
anything against the appellant. By pointing out that
he was the main assembler the Company seem to be
implying that he is responsible. It should be made
clear that other people assemble and have access to
these goods. Furthermore, the statement made about
cases of Colgate being found tries to paint a
particular picture against the appellant. Management
failed to make any reference to the fact that other
goods were found in the same place (details supplied to
the Court).
(c) The Union rejects the Company's implication that
because the appellant was assembling from a bulk load
of Colgate that he was guilty of involvement in the
alleged theft.
(d) The Company stated that the delivery to the customer in
Longford was five cases short and that the appellant
failed to report the resultant five cases surplus in
the warehouse. The reason he did not report this was
because the delivery was not five cases short when he
assembled it. He is adamant that he did not make an
error in assembling the order, because it was too small
for an error of a shortage of five cases not to go
unnoticed.
(e) To suggest that because both the appellant and the
other worker concerned were on duty on the evening of
Wednesday, 11th June, and could therefore have planned
the theft is pure conjecture on the part of Management.
(f) The driver from the sub-contracting firm has alleged
that he was approached by the other worker involved and
was offered goods. The Union rejects this and has
pointed out to Management that even if the two men were
involved in any underhand dealings they would not be
foolish enough to approach the driver who is not very
well known to them.
(g) The Union considers as strange the fact that the driver
who made the delivery to Limerick and who is alleged to
have found the five cases surplus on his lorry, did not
return to the Company's depot as is the procedure but
went instead to his own depot.
(h) The Union is of the view that the only link with the
appellant in this matter is the alleged statement made
by the other worker to the driver on the Friday
afternoon. However, he cannot give any explanation as
to why his name was used, by the other worker, as
alleged. He is absolutely convinced that he did not
leave the Longford order short and the Union argues
that even if he was involved in any attempted theft he
would not have done so by leaving such a small order
short as it could be easily spotted.
(i) The appellant has regularly reported
shortages/surpluses to the Warehouse manager and this
has been substantiated by the Company. It is also
important to note that the Longford load was in the
warehouse for one full night and it is quite possible
that the cases could have been taken off the pallet