Labour Court Database __________________________________________________________________________________ File Number: CD87137 Case Number: LCR11069 Section / Act: S67 Parties: PENN CHEMICALS LTD - and - ITGWU |
Claim, for the re-instatement of a worker.
Recommendation:
5. The Court is satisfied that the worker here concerned acted
unreasonably on the night in question and continued to so act over
the following days while the appeals procedure was in motion. The
Company therefore were justified in their action.
Nevertheless, the Court noting the length of service of the worker
and his apparent revised attitude to the issue, as expressed at
the hearing, recommends the substitution of dismissal by a period
of suspension for 6 months, with the imposition of a 12 month
probationary period to commence from date of re-start.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD87137 THE LABOUR COURT LCR11069
CC87230 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR11069
PARTIES: PENN CHEMICALS B.V.
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Claim, for the re-instatement of a worker.
Background:
2. On 26th January, 1987, the worker concerned reported for work
at 8.00 p.m. He was subsequently instructed to go to another
building to work on a reaction vessel which had become part of an
automated process in December, 1986. Later that night the worker
was asked to load chemicals into the vessel but declined to do so
on the basis that he had received no training on this vessel.
A meeting then took place between the foreman, supervisor and the
worker concerned with two colleagues representing him. At this
meeting the worker maintained that he would only work on the
vessel if he had training to do so. On 1st and 2nd February,
1987, an investigation was carried out by the processing manager.
The worker concerned stated that he did not accept that there was
any breach of discipline on his part and that he would take the
same action if the situation arose again. The Company stated that
the worker on the night persisted in refusing to carry out the
instruction to load the vessel. As a result of the investigation
the Company advised the worker of the intention to dismiss him.
He was also informed that he would be suspended immediately
without pay until 5th February, 1987, during which time he was
free to appeal against the dismissal.
Following the disclosure of the Company's intentions an unofficial
strike commenced at approximately 10.30 p.m. on 2nd February,
1987. The worker lodged an appeal on 3rd February, 1987. The
appeal was heard by the Production Director and Personnel Director
on 4th February, 1987. The worker was assisted by two colleagues,
however, the Company declined to allow a Union official to be
present whilst an unofficial strike was in progress. At the
appeal the worker was informed of the grounds for his dismissal,
which were:-
- Failing to load chemicals into the reaction vessel as
requested.
- Failing to report to his supervisor early in the shift as
instructed.
- Failing to provide satisfactory explanation for his actions
during the period leading up to his refusal to load the
vessel.
The worker contended that:-
- He was not asked specifically to report to the supervisor.
- He had spent the earlier part of the night waiting for the
vessel, which was out of service, to be ready.
- He did not refuse to do the work because he was transferred
elsewhere before the situation arose.
On 5th February, 1987, the worker was informed that his appeal had
failed. The unofficial strike continued and an Industrial
Relations Officer of the Labour Court contacted the parties and
invited them to a conciliation conference provided normal working
resumed. The parties agreed to this proposal and the unofficial
strike ended on 14th February, 1987. A conciliation conference
took place on 18th February, 1987. Agreement could not be reached
and in accordance with agreed procedures, the parties requested
that the matter be referred to the Labour Court for investigation
and recommendation. A Court hearing took place on 5th March,
1987.
Union's arguments:
3. (a) It is standard and accepted practice in the Company
that an operator should not work on anything that he is
not trained to do or considers it unsafe to do.
(b) The method used by the Company in implementing the
dismissal is in breach of our agreement by not allowing
the Union official to appeal against the decision
before the dismissal took place. This has been a
regular feature of the Company's attitude to
agreements. When the worker was informed that he was
to be dismissed, the Union requested that the action be
deferred until such a time as a Union official had an
opportunity of making representations on behalf of the
worker, in accordance with our agreement. The request
was rejected and the Company must accept responsibility
for subsequent events.
(c) When the worker appealed the decision at local level,
with the assistance of two colleagues, he was refused
permission to have a Union official present, until work
was resumed. This decision is difficult to understand
given that the appeal was heard in the presence of two
colleagues, whom the Company said were on unofficial
strike and the worker, who was not taking any
unofficial action, as he was dismissed. The Company
declined to explain this ridiculous situation.
(d) Despite continued requests, the Company did not inform
the Union why the worker was being dismissed. When the
Union requested this information, as it was required
for the Court hearing, the Company replied without
providing the detailed information we required. The
Company said that the worker was dismissed for failing
to carry out an instruction and that under the
Company/Union agreement that this is a gross misconduct
liable to dismissal without notice. This is incorrect
as the agreement recognises that there are exceptions
and is not intended to be taken literally. This
instance, where a worker says he was not trained to do
the job on his own and considered it unsafe, which is a
view held by the safety officer at the Company, could
not be taken as a gross misconduct.
(e) The worker concerned has an impeccable work record.
Given this fact, the Union believe that even if he had
been wrong in his actions, which the Union does not
accept, it does not warrant dismissal. It is the
Union's belief that the worker concerned is being
treated in this manner because of his legitimate Union
activities and this is something that the Union will
not accept.
Company's arguments:
4. (1) The worker concerned was given every encouragement to
do the work requested. The work that he was requested
to carry out was routine. It was work that he had done
on many occasions in the past and was adequately
trained to do. This work had been done on many
occasions by other operators of similar competence.
His argument that he was not trained to do so was not
valid since other operators, some with less service,
have done this work quite safely and without
difficulty.
(2) The worker was given adequate opportunity to discuss
his objections and was given time to reflect on the
implications of his actions. During the course of the
investigation and appeal, the worker stated on a number
of occasions that he would refuse again.
(3) Given that the worker concerned was involved in the
drafting of an undertaking to observe procedures, which
state:-
" The Union agrees to strictly adhere to the
grievance/negotiating procedure set out in the
Trade Union agreement."
the Company can only believe that the worker knew that
what he was doing was wrong, contrary to procedures and
that it was a situation that the Company would view very
seriously. A Rights Commissioner's recommendation,
issued in March, 1985, makes it clear that the correct
course of action was to carry out the instruction under
protect and process any grievance later.
(4) The worker, by his own admission, did not carry out any
work until requested to load chemicals into the reactor
vessel some 5 hours after the start of the shift. He
has not given a satisfactory explanation as to where he
was during this period and why he did not report to
another supervisor as requested. As an experienced
operator, he knows this conduct is not acceptable to the
Company.
(5) The worker's action on 2nd February, 1987, precipitated
an unofficial strike. He was actively involved in
picketing throughout the strike. This behaviour is
consistent with his past actions. The disregard for
agreements, shown by the worker, further strengthens the
Company's case for dismissal.
(6) The normal relationship of trust between the Company and
the worker concerned has been shattered by his conduct.
The Company is of the view that he could not be
reconciled with the Company and is satisfied that
re-instatement is not an option that would be
satisfactory.
RECOMMENDATION:
5. The Court is satisfied that the worker here concerned acted
unreasonably on the night in question and continued to so act over
the following days while the appeals procedure was in motion. The
Company therefore were justified in their action.
Nevertheless, the Court noting the length of service of the worker
and his apparent revised attitude to the issue, as expressed at
the hearing, recommends the substitution of dismissal by a period
of suspension for 6 months, with the imposition of a 12 month
probationary period to commence from date of re-start.
~
Signed on behalf of the Labour Court.
Evelyn Owens
____13th__March,__1987. ___________________
B. O'N. / M. F. Deputy Chairman