Labour Court Database __________________________________________________________________________________ File Number: CD89472 Case Number: AD8961 Section / Act: S13(9) Parties: DUBLIN COUNTY COUNCIL - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION;FEDERATED WORKERS' UNION OF IRELAND |
Appeal by the Union against Rights Commissioners Recommendation concerning two workers.
Recommendation:
5. Having considered the submissions from both parties the Court
does not find sufficient reason for altering the Rights
Commissioner's Recommendation.
The Court accordingly upholds the Rights Commissioner's
Recommendation and rejects the appeal.
Division: Ms Owens Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD89472 APPEAL DECISION NO. AD6189
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DUBLIN COUNTY COUNCIL
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
FEDERATED WORKERS' UNION OF IRELAND
SUBJECT:
1. Appeal by the Union against Rights Commissioners
Recommendation concerning two workers.
BACKGROUND:
2. The two workers concerned are employed by the Council at Tymon
North Park depot Tallaght. One is a tractor driver the other is a
general worker. Both men reported for work on 1st May, 1989 at
8.30 a.m. normal starting time, and were assigned work with a
tractor and trailer unloading rubbish at the tip-head. They
returned to the depot at 1.00 p.m. for lunch. (30 minute break).
The tractor was parked at the rear of the building as usual.
After this break the driver obtained the keys of the stores in
Tymon park. He claims that spanners were needed to adjust the
trailer. At approximately 2.00 p.m. a supervisor while walking
through the yard noticed a hydraulic ram in the trailer which was
full of rubbish. The tractor and trailer were subsequently driven
out of the depot to the Brookfield housing estate where the
workers continued their work. Enquiries made by the supervisor
confirmed that the Council's hydraulic ram which was stored in the
repair shop was missing. The Council claims that the workers
removed the ram during their lunch break, covered it up in the
trailer with rubbish and removed it from the depot. This was
vehemently denied by the workers concerned who could not explain
how the ram got onto the trailer, but claimed it was not put there
by them. The Council after an investigation decided, that though
dismissal was the appropriate penalty, to suspend the workers
without pay for one month and transfer them to another location
and give them a final warning. The Union claimed the Council's
action was unjust and the dispute was referred to a Rights
Commissioner for investigation and recommendation on the 6th June,
1989. On the 13th June, 1989 the Rights Commissioner issued his
recommendation as follows:-
"I recommend that the suspension without pay is reduced to a
1 week period, and that the transfers to other work locations
and final written warnings be implemented subject to an
appropriate time limit."
The Unions rejected the Rights Commissioner's Recommendation and
on the 22nd and 19th June, 1989 appealed it to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. A
Court hearing was held on the 3rd August, 1989.
UNION'S ARGUMENTS:
3. 1. When the workers were unloading they discovered that the
trailer was not tipping correctly and it would have to be
adjusted when they got back to the depot. They arrived at the
depot for their lunch-break at 1 p.m. Normally they would
have their lunch at the work site however on 1st May, 1989
they were instructed to report back to the depot for their
break.
2. After the break the driver requested some spanners to fix
the tipping system on the trailer. The spanners were kept in
the store in Tymon Park and the driver got the keys from the
storeman in order to get the tools to adjust the tipping
system.
3. At 1.45 p.m. a supervisor walked through the main section
of the shed and out the rear entrance. He acknowledged the
presence of the general worker who was standing in the main
section of the shed. The driver was securing the load of
rubbish on the trailer before driving back up to the
Brookfield Estate to continue their work.
4. As the men arrived at Brookfield Estate the supervisor
approached them, went to the trailer and questioned them as to
where they got the hydraulic ram. Both men stated that it was
the first time either of them had seen the ram. Both workers
were not allowed to start work the following day.
5. The workers concerned did not remove the ram from the work
shop nor did they attempt to steal it. They do not know how
it got on the back of the trailer, but more importantly
neither do the Council. The Council are taking action against
the two workers on supposition.
6. The Union feels that this case is not one for disciplinary
action in any form. It could be argued that the Council's
action is a defamation of character. The Council have
produced no clear evidence whereby they can demonstrate that
the workers concerned were in any way responsible for removing
the ram from the workshop on 1st May, 1989.
COUNTY COUNCIL'S ARGUMENTS:
4. 1. A supervisor, noticed an hydraulic ram in the trailer full
of rubbish. The driver was re-arranging the rubbish in an
apparent attempt to cover it. The tractor trailer and ram
were subsequently taken out of the depot by the workers
concerned. As the supervisor's attention had been drawn to
the ram by the suspicious behaviour of the workers he
immediately checked and confirmed that the Council owned a
similar ram which was kept under lock and key in the repair
shop in Tymon North Depot.
2. The supervisor confirmed with the yardsman that the
workers concerned had got the key to the repair shop at
approximately 1.40 p.m. and had it for approximately twenty
minutes without supervision. He also confirmed that the ram
was missing from the repair shop. The supervisor then drove
to the Brookfield Housing area where the employees concerned
were working and recovered the ram from the trailer. The
workers stated that they could not explain the presence of the
ram on the trailer. The supervisor stated that when he saw
the ram in the yard at Tymon North it was being covered up
with rubbish and when he got to Brookfield Housing Estate it
was hidden with additional rubbish.
3. The person who supplied the ram at a cost of #150.00 plus
V.A.T. to the Council has been interviewed and has positively
identified the ram as one which he supplied to the Council and
which he saw in the repair shop on numerous occasions. It was
last seen in the repair shop on Wednesday 26th April by the
area supervisor. The only other person in possession of the
key to the repair shop was accompanied by the yardsman while
in the repair shop.
4. Having regard to the fact that :-
(i) The ram was stored in the repair shop and that
within a few minutes of the workers concerned
getting the keys, the ram was missing from the
repair shop.
(ii) The workers concerned were observed making frantic
efforts to cover up the ram with bed springs in
Tymon North Yard at 2.00 p.m. on 1st May, 1989.
(iii) Given the positions which the workers state they
were at while they had the keys to the repair shop
it was impossible for the ram to have been removed
from the repair shop to the trailer without both
workers being aware of it.
5. The Council is satisfied that the workers concerned were
responsible for the removal of the ram from the Council's yard
at Tymon North. The Council feels that the action taken by it
was lenient in the circumstances (which warranted dismissal)
and requests the Court to uphold the Rights Commissioner's
Recommendation.
DECISION:
5. Having considered the submissions from both parties the Court
does not find sufficient reason for altering the Rights
Commissioner's Recommendation.
The Court accordingly upholds the Rights Commissioner's
Recommendation and rejects the appeal.
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Signed on behalf of the Labour Court
Evelyn Owens
__________________________
22nd August, 1989 Deputy Chairman.
T.O'D./J.C.