Labour Court Database __________________________________________________________________________________ File Number: CD87844 Case Number: LCR11742 Section / Act: S67 Parties: EASTERN HEALTH BOARD - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
The dismissal of two porters from St. Loman's Hospital.
Recommendation:
8. The Court finds that both claimants are guilty of serious
misconduct and does not accept the view of the Union that they
"are innocent victims of a management regime." The incidents
would never have occurred if the first of the claimants had not
described the Catering Officer in such insulting and abusive
language. However, the Court while not condoning the behaviour in
any way or finding that it was excusable on grounds of
provocation, considers that dismissal is too harsh a penalty in
all the circumstances.
A long period of suspension without pay would be more appropriate.
The Court therefore recommends that the claimants be now offered
re-employment as porters in another location without loss of the
benefits of previous service and on a probationary basis for six
months after which their personnel records should be cleared.
The Court finds disturbing the allegations of poor industrial
relations in the catering area of the Hospital and suggests that
the E.H.B. seriously consider what basis these allegations have.
The Court recommends accordingly.
Division: CHAIRMAN Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD87844 RECOMMENDATION NO. LCR11742
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: EASTERN HEALTH BOARD
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. The dismissal of two porters from St. Loman's Hospital.
BACKGROUND:
2. The first of the two workers concerned commenced employment as
a kitchen porter at the hospital on 30th April, 1985. On 30th
July, 1987 he was off duty and called to the hospital in the
afternoon to collect his pay cheque. The Union states that he had
made a prior arrangement by telephone with the catering supervisor
to do so. Management denies that any such arrangement was made.
The porter, on arrival, spoke with the cook on duty in the
kitchen. She informed him that he could not collect his cheque as
the catering supervisor had gone off duty and any undistributed
cheques were locked in her office. The porter then used foul
language to the cook with regard to the catering supervisor. He
also told the cook to convey his remarks to the catering
supervisor. He then left the hospital. The following morning he
came on duty and approached the cook asking her if she had seen
the catering supervisor and conveyed his remarks to her. Later
that day the porter was summoned to the Hospital Administrator's
office and informed that he was suspended from duty. He was
issued with notice, dated 31st July, 1987 of intention to remove
him from the employment of the Health Board due to:
"Unacceptable behaviour, i.e. abusive and insubordinate to
your immediate supervisor".
The Union made representations on the worker's behalf, pleading
mitigating circumstances. A local level Union/Management meeting
took place on 25th August, 1987. By letter dated 21st September,
1987, the Chief Executive Officer dismissed the worker from his
employment, with effect from that date.
3. The second worker commenced employment as a kitchen porter in
the hospital on 6th April, 1984. The Union states that, on 31st
July, 1987, he was taunted by the catering supervisor in relation
to what was happening to the other porter and asked to do the
other porter's work. Furthermore, that he was informed by the
catering supervisor that the other porter was still at a meeting
with management when, in fact, he had been suspended and had left
the hospital. The Union states that when he found this out, the
porter went to the catering supervisor in the presence of others,
used abusive language to her, took off his work jacket, handed it
to her and told her to "keep her job". He then left the hospital.
Management states that the porter, unprovoked, verbally abused the
catering supervisor, took off his work jacket and flung it at her,
thus striking her in the face before walking off. The worker was
issued with notice, dated 10th August, 1987, of intention to
remove him from the employment of the Health Board due to:
"Unacceptable behaviour i.e. that on Friday 31st July, 1987,
you assaulted the Catering Officer, were insubordinate and
used abusive language".
The case of this worker was also discussed at the Union/Management
meeting on 25th August, 1987. By letter dated 21st September,
1987, the Chief Executive Officer dismissed the worker from his
employment with effect from that date.
4. On 21st September, 1987, the Union referred the matter of the
dismissal of the two porters to the conciliation service of the
Labour Court. In the case of the first porter reinstatement was
sought, while the second porter sought compensation for the loss
of his employment. A conciliation conference was held on 9th
October, 1987. No settlement being reached, the matter was
referred to a full hearing of the Labour Court. A Court hearing
took place on 3rd December, 1987. There was a conflict of
evidence at the hearing and it was adjourned to allow for the
production of substantiating evidence. The hearing resumed on
23rd February, 1988, the earliest suitable date.
UNION'S ARGUMENTS:
5. 1. The current industrial relations climate in the catering
department of St. Loman's Hospital is appallingly bad. The
Union has repeatedly requested the Eastern Health Board to
investigate this situation, to no avail. In May, 1987, in the
course of a submission to a Rights Commissioner, the Union
requested the Rights Commissioner to conduct an investigation
into employee/management relations at the hospital.
Management stated that it would withdraw from the Rights
Commissioner's hearing if such a request were acceded to. The
request for an investigation still stands.
2. Management has created an explosive atmosphere at the
hospital where incidents such as the dismissal of the two
porters are inevitable and frequent. The Union, in a written
submission to the Eastern Health Board has described
management as "high handed, provocative, disruptive and
dictatorial". A number of kitchen staff/porters have resigned
or transferred. There has been harassment of staff on sick
leave and abuse of relatives/friends notifying sick absences.
Management has issued what the Union consider to be
provocative petty instructions (e.g. not to sing or whistle
and to make an unnecessary long detour to reach a locker). A
member of management has stated to the Union that catering
management would be supported by senior management "whether
reasonable or unreasonable". The bad industrial relations
climate constitutes mitigating circumstances in relation to
the porters' behaviour.
3. The first porter was, for two years up to the time of his
dismissal, the Union's shop steward in the hospital,
representing general workers, porters and attendants in the
hospital in general and in the catering area specifically.
The Union considers that the fact that he held this position
was not unconnected with the decision to dismiss him. His
predecessor as shop steward was often the subject of
management attacks and threatened with dismissal.
4. Both workers admit that they used foul language. The
Union does not defend the use of such language but considers
that in this situation there were mitigating circumstances.
Similar language was used frequently by all staff in the
kitchen. The first porter was dismissed for being "abusive
and insubordinate to his immediate supervisor" Management
stated that the immediate supervisor referred to is the cook
with whom the porter spoke. The porter was not aware that, in
the absence of the catering supervisor, the cook was his
immediate supervisor. Furthermore, this cook has frequently
used language similar to that used by the porter, in reference
to the same management. Nothing said by the porter referred
to the cook herself.
5. The Union denies in the strongest possible manner that the
second porter assaulted the catering supervisor by striking
her with a jacket. He was annoyed and frustrated at the
situation which existed on the day in question. This
manifested itself in his going to the catering supervisor,
using bad language to her, taking off his work jacket, handing
it to her and leaving.
6. The Union produced statements signed by members of the
catering staff in support of its contentions as outlined
above. It seeks the reinstatement of the first porter and
compensation to the second.
BOARD'S ARGUMENTS:
7. 1. The Board does not accept that a bad industrial relations
climate, as contended by the Union, exists in St. Loman's
Hospital. It considers that the Union's request for an
investigation of this matter is an irrelevance in relation to
particular situations such as the dismissal of the two
porters.
2. The two employees in question behaved in a totally
unacceptable manner. Their behaviour constituted gross
misconduct and insubordination. Both were inexcusably abusive
to their immediate supervisors. This misconduct, in both
cases, was unprovoked.
3. The actions of both employees were clearly an attempt to
undermine the authority of the catering supervisor. Their
offensive verbal abuse had a distressing effect on staff in
the catering department. Staff have expressed their dismay
and disgust regarding the abusive language used, particularly
in the case of one of the porters.
4. The first porter had already been disciplined for a
similar offence in April, 1987. On that occasion he was
suspended without pay for two weeks and warned in writing that
"any further misconduct on your part will result in your
dismissal from the Board's employment". (A Rights
Commissioner later recommended removal of the final warning
and a twelve month probation period and reduction of the two
week suspension to three days if the worker's behaviour and
performance were satisfactory over a six month period).
5. The personal assault and the threatening attitude of the
second porter to the catering supervisor left no option other
than to dismiss him. Management considers that the fact that
the worker walked off the job indicates that he himself was
aware of the seriousness of the incident.
6. The first porter had made no arrangements to collect his
pay cheque on 30th July, 1987. Had he done so, the cheque
would have been available. Cheques can be collected at the
hospital by off duty staff, after 11.30 a.m. approximately, on
pay day. The availability of such cheques can be ensured if
specific arrangements to collect them are made in advance.
7. The conduct of both employees has shown that they are
incompatible with the working arrangements and supervisory
structure in the Board and through their actions they have
rendered themselves totally unsuitable for employment with the
Board.
8. Management produced statements by members of the staff in
support of its contentions.
9. Management refutes the contention that the shop steward
was in any way "hounded" or victimised as a result of his
trade union activities.
RECOMMENDATION:
8. The Court finds that both claimants are guilty of serious
misconduct and does not accept the view of the Union that they
"are innocent victims of a management regime." The incidents
would never have occurred if the first of the claimants had not
described the Catering Officer in such insulting and abusive
language. However, the Court while not condoning the behaviour in
any way or finding that it was excusable on grounds of
provocation, considers that dismissal is too harsh a penalty in
all the circumstances.
A long period of suspension without pay would be more appropriate.
The Court therefore recommends that the claimants be now offered
re-employment as porters in another location without loss of the
benefits of previous service and on a probationary basis for six
months after which their personnel records should be cleared.
The Court finds disturbing the allegations of poor industrial
relations in the catering area of the Hospital and suggests that
the E.H.B. seriously consider what basis these allegations have.
The Court recommends accordingly.
~
Signed on behalf of the Labour Court
John M. Horgan
______________________
21st March, 1988. Chairman.
A.K./J.C.