Labour Court Database __________________________________________________________________________________ File Number: CD88382 Case Number: LCR11994 Section / Act: S67 Parties: MCNAUGHTONS TWISTEEL - and - MARINE PORT AND GENERAL WORKERS' UNION |
Claim that disciplinary action taken against a worker be rescinded and that he be paid for the period of suspension which was imposed.
Recommendation:
5. The Court finds that the worker was not unfairly treated in
accordance with the existing disciplinary procedure and recommends
accordingly. If the parties wish to amend or elaborate on the
agreement that should be done outside the context of a particular
dispute.
Division: CHAIRMAN Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD88382 RECOMMENDATION NO. LCR11994
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: MCNAUGHTONS TWISTEEL
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
MARINE PORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claim that disciplinary action taken against a worker be
rescinded and that he be paid for the period of suspension which
was imposed.
BACKGROUND:
2. The worker has been employed by the company since 1978, as a
general operative. In June, 1985, he was transferred to the job
of straightening. The company had occasion to write to the
worker expressing its concern at his level of performance in this
position. In May, 1986, he applied for and was appointed to the
position of bar bender despite initial reluctance on the part of
the company. The worker was put on notice that his performance
would be closely monitored. In June, 1986, the production
supervisor spoke to the worker about bars which he had bent
incorrectly. On 16th July, 1986, the production supervisor again
spoke to the worker concerning his work performance. On 22nd
July, 1986, the worker was given a verbal warning concerning his
low productivity on a particular morning. This is stage 1 of an
agreed five stage disciplinary procedure in the company (see
Appendix 1). On 13th February, 1987, the worker received a
written warning as a result of complaints from a customer. On
24th February, 1987, the company issued a final written warning to
the worker, due to his allegedly unsatisfactory performance, and a
period of absence from work during which he did not advise the
company of his situation. Also one of the days on which he was
absent was not certified. On 24th February, 1988, the worker's
performance was again deemed to be inadequate by the company. The
company initially sought to suspend the worker for one week, but
following representations from the worker's union it deferred this
action in order to allow the matter to be investigated by a third
party. On 16th March, 1988, the company issued a final written
warning to the worker in lieu of a week's suspension. On the
afternoon of the same day the company discovered that a
consignment of bars which had been incorrectly bent by the worker
had been delivered to a customer. As a result of this incident
the company suspended the worker for one week commencing on 18th
March, 1988. The union objected to the suspension on the grounds
that the company used the written warning which it issued to the
worker in February, 1987, as a stepping stone to his suspension in
March, 1988. The union contends that this is not valid as the
warning in 1987 was largely for misconduct as opposed to bad
performance, and it is not acceptable to confuse the two areas of
discipline. The union are also contending that a warning which is
of over 12 months standing should have lapsed by now, and
therefore the February, 1987 written warning should be of no
relevance to the current disciplinary procedures against the
worker. The union claims that the worker should be paid for the
period of his suspension. It claims his suspension was invalid
under the disciplinary procedures.
Agreement could not be reached at local level, and on 22nd March,
1988, the matter was referred to the conciliation service of the
Labour Court. Conciliation conferences took place on 25th March,
1988, and 6th April, 1988. No agreement was reached, and on 25th
May, 1988, the matter was referred to the Labour Court for
investigation and recommendation. A Court hearing took place in
Dublin on 21st July, 1988.
UNION'S ARGUMENTS:
3. 1. The union contends that the warning of February, 1987 is
being used against the worker as a stepping stone to his
suspension in 1988. This is unjust. It confuses two areas of
discipline which are clearly differentiated in the agreed
disciplinary procedures, namely conduct and performance. The
written warning in 1987 related to the former and should not
be used in 1988 in relation to dissatisfaction with the
workers performance.
2. A warning which is allowed to remain "live" for a period
greater than 12 months is unfair. In the comprehensive work
agreement between the company and the union, it is agreed that
new employees of the company should serve a probationary
period of 6 months. It is the union's contention that this
should also be the period of validity for any warning issued
to a worker under the disciplinary procedure.
3. In the work agreement it is stated inter alia that "the
parties agree that the primary aim of the disciplinary
procedure is to help the individual whose performance or
conduct falls below the company's requirements. The union
contends that in issuing a final written warning and
suspending the worker on the same day, the company have
breached the spirit of this agreement. It should be pointed
out that the worker is carrying out skilled work. He received
no formal training although he was promised a training course
of 13 weeks.
4. Despite the worker's lack of training, he worked in the
position of bar bender for approximately two years without
receiving any warning. The verbal warning on 29th February,
1988 was based on the worker's output over a two hour period.
This warning was not accepted on the grounds that it was a
group bonus scheme. Since the group had earned sufficient
bonus during the full day the company had no right to issue
any individual with a warning.
5. The company has made the point that the mistakes made by
the worker were expensive. However mistakes have been made at
management level the financial consequences of which have been
much more serious for the company.
COMPANY'S ARGUMENTS:
4. 1. The worker has received every assistance to improve from
the Company. It did not follow up its final written warning
of 24th February, 1987, but gave the worker a further
opportunity to improve.
2. On three occasions since June, 1986, the worker was
responsible for faulty work which was subsequently delivered
to customers. Apart from the expense involved, this has
serious implications for the company's reputation. Any one of
these incidents was sufficiently serious to warrant a final
written warning, suspension, or dismissal.
3. The company contends that it complied with the terms of
the company/union disciplinary procedure in this case. In
view of previous incidents the company was acting within the
procedures in issuing the one week suspension on 26th
February, 1988, which was subsequently reduced to a final
written warning on 16th March, 1988. When the further
incident of faulty workmanship came to light the company again
acted within the agreed procedure in suspending the worker.
4. The company contend that the worker is incapable of
performing the job of bar bending. Both personally and
through his representatives he has requested a transfer out of
this area. He was previously unsatisfactory in the job of
straightening. On 20th April, 1988, he incorrectly set his
machine and sustained severe bruising as a result of being
pulled across it. He is still absent from work as a result of
these injuries.
RECOMMENDATION:
5. The Court finds that the worker was not unfairly treated in
accordance with the existing disciplinary procedure and recommends
accordingly. If the parties wish to amend or elaborate on the
agreement that should be done outside the context of a particular
dispute.
~
Signed on behalf of the Labour Court
John M Horgan
----------------
12th August, 1988. Chairman
P.F./J.C.
APPENDIX I
DISCIPLINARY PROCEDURES
The parties agree that the primary aim of the disciplinary
procedure is to help the individual, whose peformance or conduct
falls below the company requirements, so as to achieve the
necessary improvement; if, however, furhter action becomes
necessary the parties agree to the following procedure:-
Stage 1 (Verbal)
The supervisor will reprimand the employee, verbally, of the
specific aspect of the work or conduct which is below standard
stating clearly that improvement must be made. Written details
kept by Management.
Stage 2
The manager will issue a written warning to the employee and will
record and file the main points of the discussions and a copy of
the written warning. The employee will receive a copy of the
written warning.
Stage 3
The manager will give the employee a final written warning making
it clear that his employment may be suspended or terminated if
conduct or performance does not improve. A copy of the final
warning will be sent to the Union official.
Stage 4
The manager will issue a suspension of one week making it clear
that the employee will be dismissed if conduct or performance does
not improve.
Stage 5
Where there is no improvement in conduct or performance following
Stage 4 above, the General Manager will take the decision to
dismiss the employee. A copy of the letter of dismissal will be
sent to the union official.
This procedure shall apply to all matters concerning conduct e.g.
habitual bad time-keeping and absence, and unsatisfactory work
performance (e.g. level of skill, quality and quantity of work,
aptitude). In cases of serious misconduct affecting the interest
of other employees of the company, employees may be given an
immediate final warning in accordance with Stage 3, suspension in
accordance with Stage 4, or dismissal in accordance with Stage 5.
At all stages of the Disciplinary Procedure the employee has the
right to be accompanied by a colleague or employee representative
of his choice.