Labour Court Database __________________________________________________________________________________ File Number: CD86894 Case Number: AD8725 Section / Act: S13(9) Parties: CORCAGHAN CO-OP - and - ITGWU |
Appeal against a Rights Commissioner's Recommendation (No. CM/17039) concerning a final warning and a change of route for a worker.
Recommendation:
6. The Court does not find that the Rights Commissioner's
Recommendation in this case implies any dishonesty or wrong doing
on the part of the worker concerned but relates directly to his
responsibilities as a tanker driver. For this reason the Court
concurs with the Rights Commissioner's Recommendation and decides
that it should stand.
Signed on behalf of the Labour Court
John O'Connell
27th March, 1987 ----------------
T O'M/U.S. Deptuy Chairman
Division: Mr O'Connell Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD86894 THE LABOUR COURT AD25/87
Section 13(9) INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
APPEAL DECISION NO. 25 OF 1987
Parties: CORCAGHAN CO-OPERATIVE DAIRY SOCIETY
(Represented by Irish Co-Operative Organisation Society)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal against a Rights Commissioner's Recommendation (No.
CM/17039) concerning a final warning and a change of route for a
worker.
Background:
2. The Worker, who is employed by the society as a bulk milk
tanker driver, commenced employment with the Society in October,
1979. He drove on the same milk collection route from April 1980
to August 1986. At that time the Company changed him to an
alternative collection route and issued him with a final written
warning. The Company took this action because of irregularities
in anti-biotic test results from samples of milk taken by him.
The Worker does not accept any responsibility for the
inconsistencies. The Union claimed that the Worker should be
returned to his normal route and the final warning be withdrawn.
The Society rejected the claim.
3. The Union referred the matter to a Rights Commissioner for
investigation and recommendation. On 29th September the Rights
Commissioner issued his recommendation as follows:-
The inconsistencies which he cannot explain must remain
his responsibility until he does so.
The Society has a responsibility to ensure that all milk
samples submitted for testing are reliable. Short of
dismissing th worker or taking him off the road
altogether the only reasonable course was to give him
another route and Management anyhow had a duty to warn
him of how seriously they viewed his position.
Accordingly I recommend that he accepts the new route
but that the final warning lapses after he has been
collecting on it for eight months provided there are no
similar complaints in the meanwhile.
On 11th November, 1986 the Union appealed that Recommendation to
the Labour Court in accordance with Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal in
Monaghan on 11th February, 1987 - the earliest date suitable to
all parties.
Union's arguments:
4. (i) The Worker has at all times followed the prescribed
procedure and never interfered with any sample or
failed to take samples as directed.
(ii) Some person or persons unknown are trying to discredit
the Worker and have him permanently replaced on his
normal route, or dismissed.
(iii) The change of route casts a very bad light on the
member's character and implies serious wrong doing on
his part. The implications of the Society's action are
very deep particularly against the background of a
rural environment.
(iv) The Society has no specific evidence of improper
conduct by the Worker. Their decision was based
entirely on circumstantial evidence. The complaints
have all stemmed from the Town of Monaghan Co-Operative
where Laboratory reports identified and recorded the
inconsistencies referred to above.
(v) The level of antibiotics was so high in some of the
tests that it suggested malicious action by someone.
It is logical to assume that the Worker did not tamper
with his own tanker full of milk. If he is the victim
of someone's evildoing then he should not be punished
and held up to ridicule.
(vi) It would appear that the Society cannot stand over the
test results or that the entire testing policy is a
charade for the benefit of the Department of
Agriculture.
Society's arguments:
5. (a) The Society has been dissatisfied with the Worker's
performance for some time. There were complaints in
1984 about the taking of samples. The Manager spoke to
the Worker about this on several occasions. In May
1985 serious problems arose in relation to antibiotics
in milk collected by him. In March, 1986, further
problems arose concerning antibiotics in milk collected
by the Worker. He was written to on 10th April and
advised of the Society's dis-satisfaction. The letter
stated that
"any further complaints will warrant
dismissal without further notice".
Despite this, irregularities in antibiotic levels in
the Worker's tanker again occurred on 9th June. The
samples did not correspond with the milk in the tanker.
(b) The Worker's only explanation was that someone was
interfering with his tanker. He declined to park the
tanker in a secured lock-up overnight. The Society
instructed the Worker to switch his collection route
and issued a final warning to him, it could have
dismissed him.
(c) The incorrect use of antibiotics can result in
residues in food which are detrimental to human health.
Under regulations introduced in November 1985 by the
Department of Agriculture it is an offence to purchase
or sell milk which contains residues of which the
seller should have been aware. The Society cannot
tolerate a situation where it may be exposed to
criminal charges being brought against it because of an
individual worker.
(d) The Society is responsible to its customers and the
consumer to ensure that it produces a quality product
which is free from contamination.
DECISION:
6. The Court does not find that the Rights Commissioner's
Recommendation in this case implies any dishonesty or wrong doing
on the part of the worker concerned but relates directly to his
responsibilities as a tanker driver. For this reason the Court
concurs with the Rights Commissioner's Recommendation and decides
that it should stand.
Signed on behalf of the Labour Court
John O'Connell
27th March, 1987 ----------------
T O'M/U.S. Deptuy Chairman