Labour Court Database __________________________________________________________________________________ File Number: CD87112 Case Number: LCR11049 Section / Act: S67 Parties: BURLIINGTON INDUSTRIES LTD. - and - ITGWU |
Dispute concerning disciplinary action taken against a worker.
Recommendation:
5. Having considered the submissions made by the parties the
Court is of the opinion that whilst the incident in itself was not
serious it must be considered in the context of previous incidents
of a similar nature in preceding months. In the circumstances the
Court does consider it appropriate that the Company should act,
but it does seem that the action taken was too harsh, especially
in view of the willingness of both men to come to terms with each
other. For this reason, and assuming that the worker concerned
will in future be more discreet in the language he uses to
management and supervisors the Court recommends that the final
warning be withdrawn.
On the question of the transfer from shift A to Shift B the Court
is of the opinion that both parties would err seriously by getting
such transfers in any way confused with disciplinary action as it
seems eminently sensible that the Company should have the clear
ability to effect such transfers to avoid clashes of personality
and other sources of friction of a similar nature.
Division: Mr O'Connell Mr Collins Mr O'Murchu
Text of Document__________________________________________________________________
CD87112 THE LABOUR COURT LCR11049
CC87182 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR11049
Parties: BURLINGTON INDUSTRIES (IRELAND) LIMITED (TRALEE)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Dispute concerning disciplinary action taken against a worker.
Background:
2. The Union AGM in the Burlington branch (460 members) took
place on 23/1/87. Management had given permission for the meeting
to take place from 5.30 p.m. - 7.30 p.m. At about 7 p.m., a
supervisor in the area observed some people not on shift at the
time going home. He deduced that the meeting was over. At 7.10
p.m. he entered the canteen and saw small groups of people
talking. He was the subject of some general jeering and catcalls.
The supervisor then approached the Union shop steward, who at the
time was speaking to a small group of people. The supervisor
alleges that the shop steward used abusive language to him.
Although the Union agrees that words were exchanged, the nature of
the language used is contested.
3. At 7.30 p.m. on return to work, the supervisor took the worker
into his office, and a further exchange of words, with consequent
allegations and counter allegations ensued. There were no
witnesses present at the meeting of the two men.
The Company investigated the matter and took the following action-
(a) The worker was given a final written warning (stage 3
of a 5-stage procedure) for "serious misconduct." He
was also transferred from "A" shift to "B" shift. The
Company say that this was done in order to prevent
further confrontation between the two men. The Union
says that it was a disciplinary transfer.
(b) Another worker the most junior man on "B" shift, was
transferred to "A" shift to fill the gap. The workers
on A shift refused to work with the junior employee.
The workers on "B" shift went on unofficial strike in
support of their former colleague. They returned to
work when the Company agreed to go to a third party.
4. In the interim period, the dispute concerning the junior
employee from B shift has been resolved to the satisfaction of all
concerned. The shop steward however, remains on B shift. The
Union is claiming that the worker should be re-instated to his
original shift and the final warning should be withdrawn. On 4th
February, 1987, the matter was referred to the conciliation
service of the Labour Court. A conciliation conference took place
on 11th February, 1987. Agreement was not reached, and on 17th
February, 1987, the matter was referred to the Labour Court for
investigation and recommendation. A Court hearing took place on
24th February, 1987, in Cork.
Union's arguments:
5. (i) The Company's attitude to "foul language" in the
work-place is clearly inconsistent. On two other
occasions when similar incidents occurred, the Company
did not even consider it necessary to issue a verbal
warning. The fact of the matter is that the use of
"foul language" is commonplace, and is not confined to
the Union side either. Most importantly, it was never
viewed by any of the workforce as a disciplinary
matter.
(ii) The supervisor acted in a provocative manner by
approaching the shop steward in front of the members
before the time allowed for the meeting had elapsed.
The shop steward did not swear at the supervisor. Even
if he did, rough language is part and parcel of the
working environment and was never before seen as a
disciplinary matter.
(iii) The Union fails to understand what the supervisor hoped
to achieve by speaking to the worker in private, so
soon after the alleged abuse. Nobody else was present
to witness the alleged exchange.
(iv) Disciplinary matters are administered in line with the
Company/Union agreement. The transferral of a worker
for a disciplinary offence is contrary to custom and
practice, and is not provided for in the agreement.
The Union submits that the transfer of a worker for a
disciplinary offence was never intended, and that the
worker should be restored to his original shift.
Company's arguments:
4. (a) The disciplinary procedure in the Company/Union
agreement specifies that in cases of "serious
misconduct affecting the interest of other employees,
employees may be given an immediate final written
warning, suspension or dismissal." In addition, plant
rule 4 states that "abusive or threatening language
will not be allowed on Company premises." The Company
takes a serious view of the kind of misconduct
perpetrated in this case. Indeed, it is a view widely
shared throughout industry where abusive or threatening
language can be considered grounds for suspension or
even dismissal.
(b) The Company is satisfied from its investigation of
events on the evening of the 23rd January that there is
absolutely no reason why the supervisor should
fabricate the allegations made against the worker.
Indeed, at the conciliation conference, the Union
quoted, as accepted, the supervisor's statement at the
investigation of the allegations that he had no
animosity towards the shop steward.
(c) As part of the investigation, the Company also
carefully reviewed the previous incidents involving the
workers use of abusive language and behaviour. In the
light of these, the Company accepted that, on the
balance of probabilities, the allegations made by the
supervisor were factual.
(d) Whereas, the normal response to this type of misconduct
can be suspension, or even dismissal - and the former
has been invoked at another of the Company's Irish
locations - on this occasion, due to the
representations of his Union representatives, the
Company decided on a final written warning, (stage 3 of
disciplinary procedure).
(e) As this had been the worker's second time using abusive
language towards the supervisor the Company decided to
also transfer him to a different shift, in order to
avoid any recurrence in the future. The Union has
stated that the concept of a 'disciplinary transfer'
does not exist within the Company/Union agreement, but
it is our contention that, within the broad parameters
of the specific clause in the agreement, different
kinds of transfer are possible. These include,
transfers where an imbalance exists between shifts,
transfers for technical or special reasons, or indeed
transfers for disciplinary or performance reasons.
(f) The Company requests the Court to uphold its position.
It considers its action to have been reasonable and
just in the circumstances of the case.
RECOMMENDATION:
5. Having considered the submissions made by the parties the
Court is of the opinion that whilst the incident in itself was not
serious it must be considered in the context of previous incidents
of a similar nature in preceding months. In the circumstances the
Court does consider it appropriate that the Company should act,
but it does seem that the action taken was too harsh, especially
in view of the willingness of both men to come to terms with each
other. For this reason, and assuming that the worker concerned
will in future be more discreet in the language he uses to
management and supervisors the Court recommends that the final
warning be withdrawn.
On the question of the transfer from shift A to Shift B the Court
is of the opinion that both parties would err seriously by getting
such transfers in any way confused with disciplinary action as it
seems eminently sensible that the Company should have the clear
ability to effect such transfers to avoid clashes of personality
and other sources of friction of a similar nature.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
Deputy Chairman
26th March, 1987
P.F./J.C.