Labour Court Database __________________________________________________________________________________ File Number: CD86682 Case Number: LCR10743 Section / Act: S67 Parties: TEXACO (IRELAND) LTD - and - ITGWU |
Dispute concerning the alleged breach of Company/Union Agreement and procedures by the Company.
Recommendation:
6. The Court notes that Clause 16.3 of the Agreement between the
Company and Union refers to two forms which dismissal might take. - viz
dismissal with notice or summary dismissal. The Authors of the
document must have had a reason for differentiating between the two
forms.
In the context of this Agreement the Court can only interpret "summary
dismissal" to mean "dismissal without the usual formalities." It
therefore appears to the Court that the formalities which are set out
in Section 17 of the agreement cannot apply to cases of "summary
dismissal" and accordingly the Court does not agree with the Unions
contention that the Company were in breach of the agreement and does
not recommend concession of the Union's claim.
Signed on behalf of the Labour Court.
Evelyn Owens,
___20th___October, 1986. ___________________
T. McC. / J.C. Deputy Chairman.
Division: Ms Owens Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD86682 THE LABOUR COURT LCR10743
Section 20(1)
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR10743
Parties: TEXACO (IRELAND) LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Dispute concerning the alleged breach of Company/Union Agreement
and procedures by the Company.
Background:
2. Arising from an incident at the Company's Dublin terminal a
supervisor employed there was suspended with pay from 2nd May, 1986
pending an investigation of the matter by the Company. Following
completion of this investigation the worker concerned was summarily
dismissed by the Company, with effect from 12th May, 1986, under Clause
16.4 of the Company/Union Collective Agreement. Clause 16 of the
Agreement reads as follows:
"Pending investigation of a breach of regulations and in grave
circumstances only, suspension with pay may be involved.
Summary dismissal could follow in the most serious cases,
examples of which could include unauthorised removal of
Company property, falsification of returns, disclosures of
confidential information to outside parties, disregarding
Company regulations designed to ensure safe operation such as
smoking when and where prohibited."
The Union sought to have a claim regarding the worker's dismissal and
reinstatement referred to the Labour Court in accordance with the
grievance and disciplinary procedure under in Clause 17 of the
Company/Union Agreement, the terms of which are as follows:
"17 Grievance and Disciplinary Procedure
17.1 These procedures shall be used for the settlement of
individual or collective grievances and of appeals
against disciplinary action taken by the Company.
17.2 Individual grievances and disciplinary appeals.
Stage 1
Any problem or complaint or dispute which may arise
shall, in the first place, be taken up by the employee
concerned with the immediate Supervisor, making it clear
to him, preferably in writing, that the first step in
the procedure is being taken, and a real effort must be
made to settle the matter there and then, if possible.
A maximum time lapse of five working days to be allowed
before proceedings to Stage 2.
Stage 2
Failing a settlement at Stage 1, the employee has the
right to have the matter raised with the Manager
concerned along with a member of the Union Committee and
colleague of his choice if so desired. A five day time
limit will operate as in Stage 1. If the matter is
still unresolved, the matter proceeds to Stage 3.
Stage 3
Failing a settlement at Stage 2, the matter shall be
taken up by the Union Branch Secretary with Management.
A written statement of the complaint or problem should
be signed by him and forwarded to the Personnel Manager,
who will then make the necessary arrangements for a
formal meeting. Every effort must be made to settle the
complaint or resolve the dispute at this meeting or
meetings.
Stage 4
Should agreement not be reached the matter in dispute
will be submitted to a mutually agreed independent
arbitrator and/or the Rights Commissioner and/or Labour
Court.
17.3 Collective Grievances
Grievances involving several members of the staff shall
be raised by the appropriate Union representative with
the immediate Supervisor of those affected, as in Stage
1 of the procedure for individual employees. Every
effort shall be made to resolve the issue at this level.
In the event of agreement not being reached the
procedure laid down for individual grievances shall be
followed, save that the decision to refer the matter to
a further stage shall in each case be taken by the
appropriate Union representative (s).
17.4 Nothing in these procedures is to be taken as excluding
direct access to the Personnel Manager on matters of a
personal nature or the right of appeal to the Managing
Director."
The Company was not prepared to have the matter referred to
the Court in accordance with Clause 17 of the Agreement on
the basis that it acted within its right in summarily
dismissing the worker under Clause 16.4 of the Agreement.
This was unacceptable to the Union who claimed that the
Company by dismissing the worker rather than keeping him on
paid suspension was in breach of claim 19.2 of the
Agreement. Clause 19.2 of the Agreement reads as follows:
"Pending completion of negotiations the Status Quo will
be maintained.'
3. As no agreement could be reached between the parties at local level
the Union, in a letter of 22nd August, 1986, referred the following to
the Labour court, under Section 20(1) of the Industrial Relations Act,
1969, for investigation and recommendation.
"1. That management are in breach of our current House
(Productivity) Agreement by their refusal to have
disputed matter processed through the Court.
2. That the disputed matter (the dismissal of a worker)
is a legitimate grievance within the meaning of
Clause 17 of our House (Productivity) Agreement.
3. That the Company by dismissing the worker rather
than keeping him on paid suspension is in breach of
Clause 19.2."
(The worker was referred to by name in the Union's letter). The Union
accepted that it would be bound by the Court's recommendation. The
Court investigated the dispute on 23rd September, 1986.
Union's arguments:
4. (i) The Union accepts that management were correct in taking
action under Clause 16 (discipline) for what it perceived as
a breach of regulation. However, the possibility that an
employee might be aggrieved at the end of this procedure is
specifically provided for in 16.5 which reads as follows:
"If any employee feels that any matter of discipline or
complaint has not received appropriate attention from
his immediate superior, he may make representation
through the appropriate channels of Union and Management
in accordance with the procedures laid down in the
Grievances and Disciplinary Appeals Procedure and
Negotiating Procedure."
Therefore the Company, by refusing to go to the Court with
the initial grievance is in breach of the agreed procedures,
particularly Clause 17 (grievance and disciplinary
procedure) as the disputed matter constitutes a grievance
within the meaning of that clause.
(ii) No excuse exists why the worker in this case was not
retained on paid suspension while the procedure were being
gone through. By not doing so the Company is in breach of
Clause 19 (Status Quo) of the agreement.
(iii) The Company in this case seemed to be more concerned with
imposing the ultimate penalty, before the matter could be
processed through the agreed machinery, rather than
honouring its obligations under the Agreement.
(iv) In the circumstances of this case the onus was on both
sides to have the grievance referred to the Court in
accordance with the provisions of the Agreement. However
the Company frustrated the provisions of the Agreement by
refusing to attend the Court. It is the Union's view that
neither party has the right to place limitations on what
constitutes a grievance or to the right of the other party
to access to all stages of the procedure. In this respect,
the most serious grievance a worker could have is the loss
of his/her job; especially in the current economic climate.
(v) The Union considers the Labour Court to be a more
appropriate form to hear this case than that of the
Employment Appeals Tribunal to which the Company says the
matter should be referred.
(vi) In all the circumstances the Union's position in relation to
this case is a valid one and should be upheld.
Company's arguments:
5. (a) The attendance by the Company during this investigation is
out of courtesy to the Court, in deference to the statutory
obligations on the Court under Section 20(1) of the
Industrial Relations Act, 1969 and on the understanding that
the matters being investigated are the procedural issues
referred to in the Union letter of August, 22nd 1986.
(b) The appropriate statutory remedy for the Union in this case
is under the Unfair Dismissals Act, 1977 and the Company
submits that the Employment Appeals Tribunal is the
appropriate forum under the legislation to determine the two
matters in question namely:-
(a) The dismissal of the worker,
(b) The re-instatement of the worker,
The Company is agreeable to meet a challenge to its actions
in the Employment Appeals Tribunal.
(c) The Company carried out a full investigation into the
worker's case prior to his dismissal. During this
investigation the worker was afforded and availed of full
Union representation. The Company decision to dismiss the
worker was taken only on completion of this very detailed
investigation in the course of which all statements made by
or on his behalf were considered by the Company. In view of
the serious nature of the matter involved the worker was
summarily dismissed as provided for under Clause 16.4 of the
Collective Agreement between the Company and the Union.
(d) The Company exercised its right of summary dismissal as
provided for in Clause 16.4 of the Collective Agreement.
This right to summarily dismiss (in grave circumstances and
after full investigation etc.) is not fettered or qualified
in any way. To allow any of the subsequent Union claims
(including that for re-instatement) would be clearly
inconsistent with and would effectively remove this right to
summarily dismiss, which would be unreasonable and untenable
for the Company.
RECOMMENDATION:
6. The Court notes that Clause 16.3 of the Agreement between the
Company and Union refers to two forms which dismissal might take. - viz
dismissal with notice or summary dismissal. The Authors of the
document must have had a reason for differentiating between the two
forms.
In the context of this Agreement the Court can only interpret "summary
dismissal" to mean "dismissal without the usual formalities." It
therefore appears to the Court that the formalities which are set out
in Section 17 of the agreement cannot apply to cases of "summary
dismissal" and accordingly the Court does not agree with the Unions
contention that the Company were in breach of the agreement and does
not recommend concession of the Union's claim.
Signed on behalf of the Labour Court.
Evelyn Owens,
___20th___October, 1986. ___________________
T. McC. / J.C. Deputy Chairman.
CD86682 THE LABOUR COURT LCR10743
Section 20(1)
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR10743
Parties: TEXACO (IRELAND) LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Dispute concerning the alleged breach of Company/Union Agreement
and procedures by the Company.
Background:
2. Arising from an incident at the Company's Dublin terminal a
supervisor employed there was suspended with pay from 2nd May, 1986
pending an investigation of the matter by the Company. Following
completion of this investigation the worker concerned was summarily
dismissed by the Company, with effect from 12th May, 1986, under Clause
16.4 of the Company/Union Collective Agreement. Clause 16 of the
Agreement reads as follows:
"Pending investigation of a breach of regulations and in grave
circumstances only, suspension with pay may be involved.
Summary dismissal could follow in the most serious cases,
examples of which could include unauthorised removal of
Company property, falsification of returns, disclosures of
confidential information to outside parties, disregarding
Company regulations designed to ensure safe operation such as
smoking when and where prohibited."
The Union sought to have a claim regarding the worker's dismissal and
reinstatement referred to the Labour Court in accordance with the
grievance and disciplinary procedure under in Clause 17 of the
Company/Union Agreement, the terms of which are as follows:
"17 Grievance and Disciplinary Procedure
17.1 These procedures shall be used for the settlement of
individual or collective grievances and of appeals
against disciplinary action taken by the Company.
17.2 Individual grievances and disciplinary appeals.
Stage 1
Any problem or complaint or dispute which may arise
shall, in the first place, be taken up by the employee
concerned with the immediate Supervisor, making it clear
to him, preferably in writing, that the first step in
the procedure is being taken, and a real effort must be
made to settle the matter there and then, if possible.
A maximum time lapse of five working days to be allowed
before proceedings to Stage 2.
Stage 2
Failing a settlement at Stage 1, the employee has the
right to have the matter raised with the Manager
concerned along with a member of the Union Committee and
colleague of his choice if so desired. A five day time
limit will operate as in Stage 1. If the matter is
still unresolved, the matter proceeds to Stage 3.
Stage 3
Failing a settlement at Stage 2, the matter shall be
taken up by the Union Branch Secretary with Management.
A written statement of the complaint or problem should
be signed by him and forwarded to the Personnel Manager,
who will then make the necessary arrangements for a
formal meeting. Every effort must be made to settle the
complaint or resolve the dispute at this meeting or
meetings.
Stage 4
Should agreement not be reached the matter in dispute
will be submitted to a mutually agreed independent
arbitrator and/or the Rights Commissioner and/or Labour
Court.
17.3 Collective Grievances
Grievances involving several members of the staff shall
be raised by the appropriate Union representative with
the immediate Supervisor of those affected, as in Stage
1 of the procedure for individual employees. Every
effort shall be made to resolve the issue at this level.
In the event of agreement not being reached the
procedure laid down for individual grievances shall be
followed, save that the decision to refer the matter to
a further stage shall in each case be taken by the
appropriate Union representative (s).
17.4 Nothing in these procedures is to be taken as excluding
direct access to the Personnel Manager on matters of a
personal nature or the right of appeal to the Managing
Director."
The Company was not prepared to have the matter referred to
the Court in accordance with Clause 17 of the Agreement on
the basis that it acted within its right in summarily
dismissing the worker under Clause 16.4 of the Agreement.
This was unacceptable to the Union who claimed that the
Company by dismissing the worker rather than keeping him on
paid suspension was in breach of claim 19.2 of the
Agreement. Clause 19.2 of the Agreement reads as follows:
"Pending completion of negotiations the Status Quo will
be maintained.'
3. As no agreement could be reached between the parties at local level
the Union, in a letter of 22nd August, 1986, referred the following to
the Labour court, under Section 20(1) of the Industrial Relations Act,
1969, for investigation and recommendation.
"1. That management are in breach of our current House
(Productivity) Agreement by their refusal to have
disputed matter processed through the Court.
2. That the disputed matter (the dismissal of a worker)
is a legitimate grievance within the meaning of
Clause 17 of our House (Productivity) Agreement.
3. That the Company by dismissing the worker rather
than keeping him on paid suspension is in breach of
Clause 19.2."
(The worker was referred to by name in the Union's letter). The Union
accepted that it would be bound by the Court's recommendation. The
Court investigated the dispute on 23rd September, 1986.
Union's arguments:
4. (i) The Union accepts that management were correct in taking
action under Clause 16 (discipline) for what it perceived as
a breach of regulation. However, the possibility that an
employee might be aggrieved at the end of this procedure is
specifically provided for in 16.5 which reads as follows:
"If any employee feels that any matter of discipline or
complaint has not received appropriate attention from
his immediate superior, he may make representation
through the appropriate channels of Union and Management
in accordance with the procedures laid down in the
Grievances and Disciplinary Appeals Procedure and
Negotiating Procedure."
Therefore the Company, by refusing to go to the Court with
the initial grievance is in breach of the agreed procedures,
particularly Clause 17 (grievance and disciplinary
procedure) as the disputed matter constitutes a grievance
within the meaning of that clause.
(ii) No excuse exists why the worker in this case was not
retained on paid suspension while the procedure were being
gone through. By not doing so the Company is in breach of
Clause 19 (Status Quo) of the agreement.
(iii) The Company in this case seemed to be more concerned with
imposing the ultimate penalty, before the matter could be
processed through the agreed machinery, rather than
honouring its obligations under the Agreement.
(iv) In the circumstances of this case the onus was on both
sides to have the grievance referred to the Court in
accordance with the provisions of the Agreement. However
the Company frustrated the provisions of the Agreement by
refusing to attend the Court. It is the Union's view that
neither party has the right to place limitations on what
constitutes a grievance or to the right of the other party
to access to all stages of the procedure. In this respect,
the most serious grievance a worker could have is the loss
of his/her job; especially in the current economic climate.
(v) The Union considers the Labour Court to be a more
appropriate form to hear this case than that of the
Employment Appeals Tribunal to which the Company says the
matter should be referred.
(vi) In all the circumstances the Union's position in relation to
this case is a valid one and should be upheld.
Company's arguments:
5. (a) The attendance by the Company during this investigation is
out of courtesy to the Court, in deference to the statutory
obligations on the Court under Section 20(1) of the
Industrial Relations Act, 1969 and on the understanding that
the matters being investigated are the procedural issues
referred to in the Union letter of August, 22nd 1986.
(b) The appropriate statutory remedy for the Union in this case
is under the Unfair Dismissals Act, 1977 and the Company
submits that the Employment Appeals Tribunal is the
appropriate forum under the legislation to determine the two
matters in question namely:-
(a) The dismissal of the worker,
(b) The re-instatement of the worker,
The Company is agreeable to meet a challenge to its actions
in the Employment Appeals Tribunal.
(c) The Company carried out a full investigation into the
worker's case prior to his dismissal. During this
investigation the worker was afforded and availed of full
Union representation. The Company decision to dismiss the
worker was taken only on completion of this very detailed
investigation in the course of which all statements made by
or on his behalf were considered by the Company. In view of
the serious nature of the matter involved the worker was
summarily dismissed as provided for under Clause 16.4 of the
Collective Agreement between the Company and the Union.
(d) The Company exercised its right of summary dismissal as
provided for in Clause 16.4 of the Collective Agreement.
This right to summarily dismiss (in grave circumstances and
after full investigation etc.) is not fettered or qualified
in any way. To allow any of the subsequent Union claims
(including that for re-instatement) would be clearly
inconsistent with and would effectively remove this right to
summarily dismiss, which would be unreasonable and untenable
for the Company.
RECOMMENDATION:
6. The Court notes that Clause 16.3 of the Agreement between the
Company and Union refers to two forms which dismissal might take. - viz
dismissal with notice or summary dismissal. The Authors of the
document must have had a reason for differentiating between the two
forms.
In the context of this Agreement the Court can only interpret "summary
dismissal" to mean "dismissal without the usual formalities." It
therefore appears to the Court that the formalities which are set out
in Section 17 of the agreement cannot apply to cases of "summary
dismissal" and accordingly the Court does not agree with the Unions
contention that the Company were in breach of the agreement and does
not recommend concession of the Union's claim.
Signed on behalf of the Labour Court.
Evelyn Owens,
___20th___October, 1986. ___________________
T. McC. / J.C. Deputy Chairman.