Labour Court Database __________________________________________________________________________________ File Number: CD88427 Case Number: LCR11927 Section / Act: S67 Parties: JAMES MCMAHON LIMITED - and - MARINE PORT AND GENERAL WORKERS' UNION |
The alleged unfair dismissal of one employee.
Recommendation:
9. Having considered the submissions from the parties, the Court
recommends that the employee be suspended for a period of 3 months
(without pay) and when re-instated serve a further period of six
months probation.
Division: Ms Owens Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD88427 RECOMMENDATION NO. LCR11927
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: JAMES MCMAHON LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
AND
MARINE PORT AND GENERAL WORKERS' UNION
SUBJECT:
1. The alleged unfair dismissal of one employee.
BACKGROUND:
2. The Company operates a retail and wholesale timber business
and has a number of timber yards in Limerick. The main premises
is at Corcanree on the Dock Road and all sales are handled from
there. If material is not available there the procedure is that a
general operative is dispatched, with the customer, to one of the
other yards to fill the order. Prior to doing this the operative
must get permission from the foreman and obtain the keys to the
other yard from the keyholder/checker. A docket for goods must
also be obtained before proceeding to another yard.
3. On the morning of Friday, 13th May the operative here
concerned asked the foreman at Corcanree for a short time off to
conduct some personal business. The worker states that he got his
bicycle and on his way off the premises he met the driver of a
customer at the car park who asked him for a certain type of
timber which was not available in the yard. He states that he
went back to the checker's office to get the key to the other yard
(Spaight's yard), told the checker that he was going to Spaight's
yard and went there with the customer's driver.
4. The foreman states that, after the operative concerned had
asked for permission to go on personal business, he was observed
by him cycling directly off the premises and that the operative
did not meet the driver in the car park or return to the checker's
office for keys. Management states that the checker has said that
the operative did not obtain the keys from him or state that he
was going to Spaight's yard. The checker was not aware that the
keys were missing until the operative returned them.
5. While the operative and the customer's driver were in
Spaight's yard a member of management passed by and noticed the
gate closed but the lock undone. He went into the yard and
questioned the operative who was loading the customer's van with
teak. The operative stated that he was assisting the customer and
that he would be returning to Corcanree to complete the
transaction.
6. When the operative returned to Corcanree he was questioned by
the member of management about his actions. The operative stated
his actions as outlined at (3) above. He stated that he had not
obtained a docket for the goods before going to Spaight's yard.
Management informed the operative that the matter was very
serious. In the afternoon of the same day, in the presence of his
shop steward, the worker was suspended pending a full
investigation. On 19th May, a further interview with the
operative took place and on 20th May, the Company wrote to the
operative informing him that he was being dismissed to take effect
immediately. The letter stated that his actions and subsequent
unsatisfactory explanation of them, was tantamount to gross
misconduct, and, arising from this, there was a fundamental
breakdown in the necessary bond of trust between employer and
employee. The worker considered his dismissal to be unfair and on
31st May, placed an unofficial day long picket on the yard. The
matter was referred, on the same day, to the conciliation service
of the Labour Court and a conciliation conference took place on
3rd June, 1988. No agreement was reached and the matter was
referred to a full hearing of the Labour Court. The hearing took
place on 14th June, 1988.
UNION'S ARGUMENTS:
7. 1. If the worker is guilty of anything, it is in the area of
not following procedural regulations. Such a situation is
catered for in the Comprehensive Work Agreement (copy supplied
to the Court). This sets out a procedure for dealing with
employees who "become liable to disciplinary action because of
failure to meet standards applied in the work rules of the
agreement with regard to conduct, performance and compliance
with other regulations." The stages to be followed are verbal
warning, written warning, suspension, final written warning
and, lastly, dismissal. These stages were not adhered to in
this case.
2. The Comprehensive Work Agreement lists various situations
in which the disciplinary procedure should apply including
breach of regulations. It states that these misdemeanours may
be treated as "serious misconduct". "Gross misconduct" as
referred to in the Company's letter of 24th May, is not
referred to.
7. 3. The procedures in relation to going to other yards,
obtaining keys, dockets etc. as set out by management are not,
in practice, strictly adhered to. The Union verbally outlined
examples of this.
4. There was never any intention on the part of the worker to
participate in any malpractice as seems to be implied by the
Company. There was no danger of the Company incurring a loss
on the transaction in question as the driver who accompanied
the worker to Spaight's yard paid for the goods with a cheque
pre-signed by his employer, the Company's customer.
5. During the meeting held on the 18th May, 1988, the
Company's representatives went to great lengths to point out
that they were not accusing the worker of any malpractice in
any shape or form. It came as a great suuprise when the
particular paragraph concerning trust between employer and
employee was introduced in the Company's letter of dismissal.
The Union is seeking the reinstatement of the worker with
compensation for any loss he has incurred.
COMPANY'S ARGUMENTS:
8. 1. Having considered all the facts and having fully
investigated the position, management is of the firm view that
the worker's actions and subsequent unsatisfactory explanation
of them constitute gross misconduct.
2. It is clear that normal procedures (details supplied to
the Court) were completely ignored by the worker.
Furthermore, a number of important, elements of explanation
offered by the worker were disputed by key personnel (details
supplied to the Court).
3. The Company is of the firm view that the events in this
case and the subsequent unsatisfactory explanation of them,
when viewed in their full context, are so serious as to be
dismissible without reference to either the steps set out in
the disciplinary procedure or the worker's previous
disciplinary record.
4. The Company rejects the Union's argument that the
prewritten cheque is in itself proof of employee reliability.
5. Management contends that there has been a fundamental
breakdown of the necessary bond of trust between employer and
employee and that the dismissal of the employee was,
therefore, appropriate.