Labour Court Database __________________________________________________________________________________ File Number: CD88773 Case Number: AD8872 Section / Act: S13(9) Parties: DUBLIN COUNTY COUNCIL - and - AUTOMOBILE, GENERAL ENGINEERING MECHANICAL OPERATIVES UNION |
Appeal by the Union against Rights Commissioner's Recommendation ST427/88 concerning disciplinary action against a worker.
Recommendation:
6. In the circumstances of this case the Court is of the view
that the Rights Commissioner's recommendation is reasonable and
should be upheld.
The Court so decides.
Division: Ms Owens Mr Heffernan Mr Devine
Text of Document__________________________________________________________________
CD88773 APPEAL DECISION NO. AD7288
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DUBLIN COUNTY COUNCIL
and
AUTOMOBILE, GENERAL ENGINEERING MECHANICAL OPERATIVES UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation ST427/88 concerning disciplinary action against a
worker.
BACKGROUND:
2. The worker concerned has been employed by the Council since
September, 1973 and is employed in the capacity of driver. The
Council claim that on the 29th April, 1988, he was instructed to
report to Bohernabreena burial grounds at 1.00 p.m. As he had not
arrived by 2.00 p.m., the foreman went looking for him and he
eventually met him driving from the access road to the Twelfth
Lock public house. The Council claims that he failed to comply
with an instruction to report to the burial grounds, that he left
his route, that he carried an unauthorised passenger in his
vehicle and that he had a drink in the Twelfth Lock public house
when he should have been on duty. The worker, accompanied by his
Union official, was called into the personnel department on the
1st June, 1988, and denied the charges. The Council subsequently
decided to suspend him from duty for a period of one week and to
remove him from driving duties. The Union disputed this and gave
notice of its intention to refer the matter to a Rights
Commissioner. Consequently the Council decided to delay
implementing the disciplinary action pending the Rights
Commissioner's investigation.
3. The Rights Commissioner, having investigated the dispute on
the 6th September, 1988, issued the following recommendation on
the 8th September:
"The claimant has been in trouble before on the count of
drinking on duty. There is a direct conflict of evidence on
this charge, and as the claimant is the greater sufferer, I
must give him the benefit of the doubt - but I do so
reluctantly. I take the Council's argument that he could
have gone to the toilet in Lucan 4/5 minutes earlier. He
left the direct route, therefore, without due cause and
reason except his earlier neglect.
In all the circumstances including the strong possibility
that he did, in fact, take a drink, I recommend that his
suspension without pay be increased to two weeks.
However, the loss of his driving duties is a very severe and
on-going penalty, and since I have given him the benefit of
the doubt, I must mitigate this penalty. I, therefore,
recommend that he continue in these duties until 1/9/1989,
subject to good behaviour in the interim. The parties should
then meet to review his performance. Subject to satisfactory
reports, he should be fully restored to these duties at that
time."
This recommendation was unacceptable to the Union and on the 7th
October it was appealed to the Labour Court under Section 13(9) of
the Industrial Relations Act, 1969. A Court hearing was held on
the 21st November, 1988 (earliest possible date).
UNION'S ARGUMENTS:
4.1 The worker is firmly of the opinion that he was not issued
with an explicit directive to be at the burial grounds at
precisely 1.00 p.m. He perceived it as a general order to go
there when he had completed his work at Esker graveyard. It
was in fact his conscientious application to his work that
prevented him from being at Bohernabreena at the time
requested. He operated within the latitude of the
instruction as he perceived it.
4.2 It is not customary for the Council to issue drivers engaged
in general duties with a list of approved routes.
Notwithstanding this fact however, he was using the most
direct route to his destination on the day in question; his
crime appears to be that he departed from the main road for a
distance of a couple of hundred yards to respond to a call of
nature. There are no toilet facilities provided at the
location in which he worked that morning.
4.3 The passenger he carried in his truck is an employee of the
Council. The practice of Council drivers picking up fellow
employees in the course of their duties is indeed a long
established one. There is no Council prohibition in relation
to this practice.
4.4 The charge of having a drink in the Twelfth Lock public house
is indeed the most serious charge, yet no investigation
whatsoever was carried out by the Council to ascertain if he
had actually been drinking on the premises in question.
While Council officials carefully measured the distance from
the main road to the doorway of the public house, they did
not enter the premises. The appellant emphatically denies he
entered the Twelfth Lock public house.
4.5 The Court is respectfully requested to remove the sanctions
imposed on the worker.
COUNCIL'S ARGUMENTS:
5.1 The Council will not tolerate the consumption of alcohol
during working hours by any of its employees. This is all
the more serious in the case of a driver, who is in charge of
a vehicle. Employees are fully aware of the serious view
which the Council takes in relation to this.
5.2 The parking of Council vehicles outside public houses during
the course of a working day brings the Council into disrepute
and it will not tolerate a minority of irresponsible
employees engaging in this type of conduct.
5.3 The appellant is fully aware of the serious view which the
Council takes of drinking alcohol during working hours and of
the parking of Council vehicles outside public houses during
working hours as he has been suspended for a similar offence
as recently as 1985.
5.4 In addition to the suspension imposed in 1985, he has also
been suspended for two weeks in 1975, for removing a
windscreen from a Council vehicle. He has also been
reprimanded in June 1985, for conducting personal business
during working hours without permission. It can be seen that
he has proved himself over a long number of years to be
irresponsible and the Council feels that he can no longer
hold the position of trust and responsibility which a
driver's position entails.
5.5 The Council feels that it has been lenient in relation to
this matter and having regard to the serious nature of the
charges and also to his previous unsatisfactory work record
it is apparent that other employers would have terminated his
employment at this stage.
5.6 Although the Council considers that the Rights Commissioner
was somewhat lenient in this case, it is prepared to accept
his recommendation and accordingly the Court is respectfully
requested to uphold it.
DECISION:
6. In the circumstances of this case the Court is of the view
that the Rights Commissioner's recommendation is reasonable and
should be upheld.
The Court so decides.
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Signed on behalf of the Labour Court
8th December, 1988 Evelyn Owens
DH/PG Deputy Chairman