AD8817

Subject:
Appeal by the Union against Rights Commissioner's Recommendation No. CW147/87 concerning the proposed suspension for one week of a worker for refusing to operate a forktruck.

Recommendation:
11. The Court having considered the submissions from both parties
is of the view that the appellants behaviour on the night
concerned was such as to merit some disciplinary action.

The Court therefore agrees with the finding of the Rights
Commissioner.

However the Court is also of the view that a week's suspension is
an excessive penalty in the circumstances and recommends that the
Company should reduce the period to 3 days.

The Court so decides.

Division: Ms Owens Mr Shiel Mr Devine

Text of Document__________________________________________________________________

CD8825 APPEAL DECISION NO. AD1788

INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)

PARTIES: SMURFIT CORRUGATED CASES LIMITED
(Represented by the Federated Union of Employers)

and

IRISH TRANSPORT AND GENERAL WORKERS' UNION



SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. CW147/87 concerning the proposed suspension for
one week of a worker for refusing to operate a forktruck.

BACKGROUND
2. On the evening of 24th June, 1987, the worker concerned (who
is employed as a forktruck driver) informed his shift supervisor
that the brakes on the forktruck he was driving were faulty and
that, in his opinion, the forktruck was unsafe.

3. His supervisor gave him an instruction to drive the forktruck.
The worker refused to do so on safety grounds. There were three
other forktrucks in the area which the worker refused to use
because he considered them unsafe.

4. The supervisor then contacted the shop steward and informed
him of the problem, and that if the worker would not drive the
forktruck he would be sent home. The shopsteward went to the work
area, tested the forktruck's brakes, and stated that in his
opinion they were alright. He then instructed the worker to
return to his duties.

5. The worker resumed working and completed his shift. Because
the worker removes the finished product from the corrugated
machine, it meant that while the problem was being sorted out
approximately 25 minutes production was lost.

6. Following consideration of the incident by Management it was
decided to impose a one week suspension on the worker. The Union
objected to the suspension and the matter was referred to a Rights
Commissioner for investigation and recommendation.

7. Following an investigation held on 12th November, 1987, the
Rights Commissioner issued the following Recommendation dated 27th
November, 1987 -

"I recommend that the Union accepts the disciplinary proposals
of the Company regarding the worker"



8. The Union appealed the Recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. The
Court heard the appeal on 29th February, 1988.

UNION'S ARGUMENTS:
9. 1. The workers refusal to operate the forktruck on safety
grounds was justified. The Company called in an engineer
from the forktruck leasing Company on the day after the
incident and he carried out repairs on the 3 forktrucks. The
forktruck in question had to have new seals put on the brake
drum.

2. On the night of the incident the shopsteward, when
testing the forktruck, was unaware that the supervisor had
pumped the brake pedal resulting in a build up of pressure
which gave the impression that the brakes were working
normally.

3. The company compromised the worker by putting him in a
position that if he did not drive the forktruck then he would
be sent home purely to save a small amount of production.
This resulted in the worker reluctantly driving the forktruck
as he could not afford to be sent home.

4. Forktruck driving is a highly skilled job and this is
recognised by F.A.S. to the extent that they run courses for
forktruck drivers so as to maximise their awareness of the
skills and safety that is involved. They also supply safety
posters to be positioned in factories because a forktruck in
the hands of unskilled operators can be a lethal weapon.

COMPANY'S ARGUMENTS:
10. 1. The worker's repeated refusal to operate not alone one
forktruck, but three in total, was unreasonable and
unwarranted.

2. The Company has a servicing agreement with an Engineering
Company for the ongoing maintenance and repair of its
forktrucks. Each of the Company's forktrucks therefore
receives regular maintenance and evidence of this can be
obtained from the pertinent invoices.

3. The Company would never condone the operation of a
machine in its Plant which was unsafe. The worker was not
asked to operate an unsafe forktruck. Apart from the shift
manager and his supervisor, his own shop steward having tried
out the truck, instructed the worker to operate the forklift
and it was only then that he agreed to do so.


4. As a result of the worker's actions approximately 25
minutes production was lost on the corrugator machine at a
cost of approximately #2000. This together with the fact
that the forktruck was safe for use renders his action
inexcusable.

5. The Rights Commissioner heard the dispute on the 12th
November, 1987, and after a lengthy investigation, found that
the worker could have lodged a protest concerning the
forklifts while continuing to work without any disruption to
production. The Rights Commissioner recommended that the
Union accept the disciplinary proposals of the Company
regarding the worker. The Company therefore requests the
Court to uphold the Rights Commissioners Recommendation in
this matter.

DECISION:

11. The Court having considered the submissions from both parties
is of the view that the appellants behaviour on the night
concerned was such as to merit some disciplinary action.

The Court therefore agrees with the finding of the Rights
Commissioner.

However the Court is also of the view that a week's suspension is
an excessive penalty in the circumstances and recommends that the
Company should reduce the period to 3 days.

The Court so decides.
~


Signed on behalf of the Labour Court


31st March, 1988 Evelyn Owens
M.D./P.W. Deputy Chairman