Labour Court Database __________________________________________________________________________________ File Number: CD86984 Case Number: LCR11075 Section / Act: S67 Parties: AUGHINISH ALUMINA LTD - and - NEETU;AEU |
Dismissal of four workers for alleged intimidation.
Recommendation:
5. In this case the Court adopted the unusual procedure of
examining the witnesses on oath in the course of the
investigation. This was necessary because of the serious nature
of the allegations and the difficulty in establishing the veracity
of the allegations made by both sides. The Court found this
procedure of great assistance to it. Nevertheless it is not one
which the Court would wish to use frequently. The Court noted
that the parties to this dispute chose to use the services of the
Court in its traditional Industrial Relations role rather than
progress it through other avenues.
During the course of the hearing the word "intimidation" was used
in referring to a wide range of behaviour by both the employees
and the Company. The Court wishes to make it clear that it does
not accept that the term "intimidation" should be used to cover
such a wide range of behaviour.
The Court finds that on the evidence presented to it:
(a) Worker A was put in fear of his personal safety on the
morning of the 8th October, 1986.
(b) The Company took reasonable steps to investigate the
incident and afforded the Unions adequate opportunity to
defend the interests of their members.
(c) The four employees dismissed by the Company were
involved in the incident of the 8th October, 1986.
(d) The incident went beyond normal acceptable behaviour.
This was not simply a case of the four fitters verbally
haranguing a fellow employee for having applied for
promotion. It was a direct premeditated threat of
serious physical intimidation against a fellow worker.
In the Court's view such behaviour warrants dismissal,
and the Court does not therefore recommend that the four
former employees be reinstated.
Division: CHAIRMAN Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD86984 THE LABOUR COURT LCR11075
CC861865 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR11075
Parties: AUGHINISH ALUMINA LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
AMALGAMATED ENGINEERING UNION
NATIONAL ENGINEERING AND ELECTRICAL TRADE UNION
Subject:
1. Dismissal of four workers for alleged intimidation.
Background:
2. Following an incident of alleged intimidation on 8th October,
1986, involving the wielding of iron bars/handles, a fitter and a
supervisor resigned. This was against a background of what was
alleged to be ongoing intimidation in the plant. The fitter, who
was the subject of the alleged intimidation, had previously acted
as a temporary supervisor. Following the incident, the fitter's
immediate supervisor also resigned on the grounds that he "would
be next on the list". The Company investigated the matter and
while so doing, suspended the four craftsmen allegedly involved on
full pay. On completion of its investigation the Company
dismissed the four workers for intimidation. Following local
negotiations it was agreed to refer the matter to the conciliation
service of the Labour Court. A conciliation conference took place
on 1st December, 1986. In all negotiations the four workers
denied being involved in any intimidation. The Unions demand the
reinstatement of the workers. The Company for its part, contends
that it has fully investigated the matter, interviewing 40 workers
and repeatedly questioning the four craftsmen. It also claims to
have given the craftsmen an opportunity to appeal their dismissal
but this offer was declined. No agreement could be reached at the
conciliation conference and on the 11th December, 1986, the matter
was referred to the Labour Court for investigation and
recommendation. A Court hearing was held in Dublin on the 19th
December, 1986. At this hearing a conflict of evidence emerged.
The Court adjourned the hearing and stated that at the resumed
hearing evidence would be taken under oath. On the 6th February,
1987, the Court resumed its investigation into the matter. A
total of 19 witnesses were summoned by the Court, of whom six gave
evidence under oath.
Unions' arguments:
3. (i) The four workers who were dismissed for the alleged
intimidation deny categorically that they were involved
in any incident on the morning of the 8th October, 1986,
and also deny any involvement in intimidation prior to
this alleged incident.
(ii) The workforce in Area 41 (where the alleged incident
took place) have made statements, witnessed by the
N.E.E.T.U. shop steward, that they saw no intimidation
in Area 41 on the morning in question.
(iii) It is the Unions' contention that the worker who
resigned as a result of the alleged intimidation (worker
A) and his immediate supervisor who also resigned
(worker B) premeditated and planned the whole series of
events for their own ends. Both individuals applied for
posts of permanent supervisor within the Company, and
were unsuccessful. Worker A spoke of getting
compensation/redundancy from the Company four weeks
prior to resignation. The Unions contend that worker A
has supplied an unreliable and contradictory account of
events to the Company and to the Labour Court. The
Unions maintain their belief that the events were
orchestrated by workers A and B, with a view to
extracting lump sum payments from the Company.
(iv) The only evidence against the dismissed workers is the
word of worker A. Nobody else in the area on the
morning in question remembers anything untoward having
taken place. The Unions believe that the conflict in
evidence on the reported incident is highly significant,
and completely discredits the testimony of worker A.
The interviews carried out during the Company's
investigation are completely lacking in credibility. On
the day in question the first five people interviewed
were not near the area where the alleged incident took
place. Worker A's partner did not witness any
intimidation and indeed was very surprised to hear of
the subsequent resignations.
(v) The Unions take strong exception to the intimidatory
approach of the Company. During the course of the
Company's investigation a listening device was
discovered in an area of the plant. The Company
immediately denied its involvement, and announced the
resignation of its Security Manager. The Security
Manager reports directly to the Personnel Manager who is
Head of Security, and who was in charge of the
investigation. The Company's readiness to use pressure
tactics has also been apparent during the few wage
negotiations which have taken place.
(vi) The Unions are particularly aggrieved at the suggestion
that they have in any way approved of or condoned
intimidation. The fact that certain workers ignore
democratic decisions may make them feel intimidated.
This is a different concept altogether, and is not
something for which the Unions are responsible. The
Unions do not approve of intimidation nor have they ever
done so. There is no good evidence, however, that the
four workers who were dismissed were involved in
intimidation. The Unions request the Court not to
endorse a grave miscarriage of justice and seek the
reinstatement of the four craftsmen without loss of pay.
Company's arguments:
4. (a) The current situation has arisen against a background of
rife intimidation, arising originally from the
"blacking" of the temporary acting supervisor positions
by the Unions. Despite the Company's best efforts to
allay fears on this matter, these promotions have proven
to be contentious. The initial victims of intimidation
were fourteen fitters who responded to an internal
advertisement seeking a panel of temporary/acting
supervisors. All of them suffered abuse, vilification
and ostracism, for allegedly breaching a democratic
majority decision not to apply for temporary promotions.
The fourteen Panel Applicants consistently maintained
that no such majority decision was taken by their peers.
They were invited to attend Branch meetings of their
respective Unions, i.e. the AEU and the NEETU. Had
either or both of these Unions joined with the Company
in resisting the initial campaign of intimidation, the
problem would probably have been contained/eliminated
then. Unfortunately, this did not occur.
(b) The NEETU (representing the majority of the Company's
fitters) fined its offending members #50.00 each for
responding to the Company's advertisement. The AEU
decided on a similar course of action. It fined its
offending members #15.00 each on similar grounds. The
effect of the Unions' actions was to legitimise
intimidation.
(c) The fourteen were subjected to many forms of overt
intimidation. Some examples are as follows:
(i) they were called offensive/criminal names,
e.g. Scab and Blackleg,
(ii) they were portrayed through abusive notices
(example with the Court),
(iii) they became the objects of odious graffiti,
(iv) work pieces were interfered with,
(v) they received reduced co-operation from peers
acting singly and in groups,
(vi) unsafe practices were directed against them,
(vii) pervasive vilification both on and off the Plant
became the lot of themselves and their families,
(viii) boycotting and ostracism became commonplace
(details with the Court).
(d) Both Unions continued to call for the disbandment of the
Temporary/Acting Supervisors' Panel. Alternately, they
denied and rationalised the presence of intimidation.
The later decision of the AEU to lift the #15.00 fines
earlier imposed on their members was couched in words
suggesting that they were cleared on technicalities
rather than vindicated on their opposition to
intimidation.
(e) Not surprisingly, intimidation flourished. Five panel
members resigned. The remainder endured sustained
intimidation which operated mainly behind the scenes.
Finding independent evidence of intimidation was
extremely difficult. However, one glaring act of
intimidation was witnessed by a Process Supervisor. On
15th May, 1985, two fitters were seen to throw objects
at another fitter sitting in a van 80 - 100 feet beneath
their perch. They were on top of an Alumina Silo. The
target was one of the panel applicants who was then
preparing his appeal against his fine by the AEU.
(f) The Company investigated the incident and following
consideration of all the options it was decided to
impose unprecedented suspensions of two months duration
with no pay plus Final Written Warnings. In hindsight,
the Company recognised that the disciplinary action
taken had been totally ineffective in that it failed to
stem the tide of intimidation.
(g) Both workers who resigned as a result of the incident
now before the Court, were previously victims of
intimidation. Harassment in their cases took various
forms, e.g.
(i) refusals to work with/for them in a co-operative
manner,
(ii) refusals to work overtime for or with either of
them, and
(iii) whistling, jeering and directing other fitters not
to associate with both of them.
The Company became aware of the high and escalating
levels of intimidation. Both men considered retiring at
that stage, but were advised by the Company to try and
combat the situation from within.
(h) The events which occurred on the morning of the 8th
October, 1986, marked a serious deterioration in the
situation. Worker A considered himself to be in serious
physical danger. He was not prepared to work overtime
later that day, even under close supervision. His
immediate Supervisor, Worker B, was of the belief that
he "was next on the list". He also considered his
position untenable. Worker A resigned on Thursday, 9th
October and Worker B resigned on Friday, 10th October,
1986.
(i) The Company decided that the four fitters who allegedly
had been involved in the incident should be placed on
Investigative Suspension with pay, with effect from 10th
October, 1986, and that a full investigation into
intimidation on Site and the events of the 8th October,
1986, would be conducted.
(j) Over 40 individuals were interviewed. Each individual
personally interviewed was advised that notes were being
taken and that all evidence given would be treated in
strict confidence. The results of the investigation may
be summarised as follows:-
(1) evidence emerged showing definite intimidation on
Site,
(2) the main targets of the intimidators were those
fitters who had applied for, or who had been
appointed to, Temporary and/or Acting Supervisor
positions,
(3) it became clear that other fitters were intimidated
to observe overtime bans, call-in bans, etc,
(4) a number of fitters stated that each of the four
fitters named in relation to the incident in Area
41 had committed intimidation or had been
associated with intimidation,
(5) evidence was given by some fitters who stated their
conviction that they were doing so at some risk to
themselves.
(k) The Company is satisfied that its investigation into the
intimidation at the plant was thorough and impartial,
and allowed an opportunity to everybody concerned to
make their case. The placing of the listening device
was an unauthorised breach of Company policy. The
occurrence was in no way connected with any aspect of
the investigation into intimidation. Subsequent to
Management becoming aware of the placing of the device,
a member of the Security Staff resigned. The room where
the device was discovered was not used for interviews
concerning intimidation. The Company strongly rejects
the Unions' contention that intimidatory tactics were
used by it during the course of its investigation or at
any other time. The Company earnestly submits to the
Court that its decision to dismiss the workers concerned
was justified, and requests the Court to uphold its
decision.
RECOMMENDATION:
5. In this case the Court adopted the unusual procedure of
examining the witnesses on oath in the course of the
investigation. This was necessary because of the serious nature
of the allegations and the difficulty in establishing the veracity
of the allegations made by both sides. The Court found this
procedure of great assistance to it. Nevertheless it is not one
which the Court would wish to use frequently. The Court noted
that the parties to this dispute chose to use the services of the
Court in its traditional Industrial Relations role rather than
progress it through other avenues.
During the course of the hearing the word "intimidation" was used
in referring to a wide range of behaviour by both the employees
and the Company. The Court wishes to make it clear that it does
not accept that the term "intimidation" should be used to cover
such a wide range of behaviour.
The Court finds that on the evidence presented to it:
(a) Worker A was put in fear of his personal safety on the
morning of the 8th October, 1986.
(b) The Company took reasonable steps to investigate the
incident and afforded the Unions adequate opportunity to
defend the interests of their members.
(c) The four employees dismissed by the Company were
involved in the incident of the 8th October, 1986.
(d) The incident went beyond normal acceptable behaviour.
This was not simply a case of the four fitters verbally
haranguing a fellow employee for having applied for
promotion. It was a direct premeditated threat of
serious physical intimidation against a fellow worker.
In the Court's view such behaviour warrants dismissal,
and the Court does not therefore recommend that the four
former employees be reinstated.
~
Signed on behalf of the Labour Court
John M Horgan
31st March, 1987 --------------
PF/PG Chairman