Labour Court Database __________________________________________________________________________________ File Number: CD89398 Case Number: LCR12515 Section / Act: S67 Parties: DONNELLY MIRRORS LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Reinstatement of a dismissed employee.
Recommendation:
5. Having heard the submissions of the parties, the Court
considers that the Company acted completely within the
disciplinary procedures by making arrangements to ensure the
claimant was represented by his Trade Union and that he had
adequate opportunity to put forward his side of the issue.
The Court does not regard the explanation given by the worker as
an adequate excuse for his absence and in view of the fact that he
was on a "final warning" arising from other issues, the Court
considers that by being absent without permission from his
work-station on the night in question, the worker displayed
blatant disregard for the disciplinary procedures as well as for
the Company's work arrangements and the normal courtesies between
worker and supervisor.
Accordingly, the Court considers that the Company action was
reasonable and does not find grounds to recommend concession of
the Union claim for re-instatement of the worker.
Division: CHAIRMAN Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD89398 RECOMMENDATION NO. LCR12515
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: DONNELLY MIRRORS LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Reinstatement of a dismissed employee.
BACKGROUND:
2. The Company manufactures and markets mirrors for the
automotive industry. The worker concerned had a history of
disciplinary problems and on the 17th April, 1989, he received a
final written warning indicating that any further breach of
discipline may result in dismissal. On Wednesday, 19th April, he
was scheduled to work four hours overtime from 11.00 p.m.
following the end of his normal shift. However, the worker had an
unauthorised absence from his work station between approximately
11 p.m. and 11.45 p.m. (this is not contested by the Union,
worker, or Company). On resumption of duty at approximately 11.45
p.m. the worker was requested by the night shift supervisor to
explain his absence and was also requested to do a "stacking" job.
In response the worker claimed he had been in the canteen during
the absence (it subsequently transpired that he was in the car
park repairing his car) and requested that he be allocated a
"lugging" job which he normally did on overtime. When he was
again instructed to do the "stacking" job he requested that the
matter be referred to his own shift supervisor, who confirmed the
night shift supervisor's earlier instruction to do a "stacking"
job. The worker then requested that his Union representative be
consulted and following discussions between the supervisors, the
worker, and his Union representative, the worker agreed to do the
"stacking" job. The Union contends that the incident was resolved
at that stage and that no further investigation was merited. The
Company contends that the grievance procedures which had been
initiated by the worker concerning the duty he was to perform on
overtime had been resolved but that the matter of his unauthorised
absence from his work station had not. On the 21st April,
following a meeting with the Production Manager, the worker was
suspended on full pay and following several lengthy local level
meetings was subsequently dismissed on Friday, 19th May, 1989. On
Monday, 22nd May, the worker placed an unofficial picket on the
Company's premises which effectively ceased production at the
plant. The picket was lifted when it was agreed to refer the
dispute to the conciliation service of the Labour Court. A
conciliation conference was held on 24th May, 1989 and as no
agreement was reached the dispute was referred to the Labour Court
for investigation and recommendation. A Court hearing took place
on 27th July, 1989.
UNION'S ARGUMENTS:
3. 1. The issues involved in the incident which occurred on the
19th, April, 1989 were dealt with at supervisor level and had
been concluded at that time (details supplied to the Court).
The Company, and in particular the Production Management, has
no right to intervene in a post settlement situation where it
occurs in a shift environment and where the issue has been
resolved of its own volition and without reference to the
disciplinary procedures.
3. 2. At the time of the incident neither the Union
representative nor the worker were advised that the
unauthorised absence would be the subject of further
investigation and could lead to disciplinary action.
3. 3. The Company has introduced a new dimension to
disciplinary and grievance resolution. The Production Manager
now claims that issues that are raised with supervisors at
either disciplinary step 3 or step 4 level cannot be resolved
by the supervisor at source and that notice must be given to
him of any incident where the party concerned in the grievance
is on either of these steps and that he subsequently will deal
with the matter irrespective of the outcome on the shift at
which the dispute arose. He further claims that the
supervisor would have an influence in determining his
judgement as to whether or not the issue should go further but
that the supervisor's judgement would not be mandatory on him
in that he would be the final arbitrator as to whether the
issue has been satisfactorily resolved or not.
3. 4. Within the process of natural justice where a supervisor
is discussing a matter with an operative and his Union
representative the onus is on the supervisor and on the
Company to clearly give notice that the issue under discussion
is of a disciplinary nature as opposed to a discussion seeking
a resolution to a problem.
3. 5. The Company was in breach of procedural fairness in that
the claimant was not given the benefit of natural justice
(essentially the requirement by Management to serve notice as
to how it is treating the issue in dispute and of the possible
consequences arising from the original negotiations and
discussions on the grievance and the possible outcome where
satisfaction is not provided). The shop steward was given to
believe at all times that the issue was a local issue, that
was capable of resolution on the basis of compliance with
instructions and that upon such compliance the issue had been
dealt with and resolved.
COMPANY'S ARGUMENTS:
4. 1. The Company has had a long history of disciplinary issues
with the worker concerned. On the 17th April, 1989 a final
warning was issued to him indicating that any further breach
of discipline may result in dismissal. In the light of this
warning the worker had an unauthorised absence from his work
station on the 19th April two days after the final warning was
issued. The Company is satisfied that the worker was notified
that his absence was not acceptable and would be reported to
the manufacturing manager and could lead to disciplinary
proceedings.
4. 2. The worker's grievance (i.e. whether he should do the
"stacking" or "lugging" job) was the only thing resolved when
the incident occurred. The issue of unauthorised absence was
not resolved at that stage and was properly investigated
further under the disciplinary procedures.
4. 3. The Company is involved in a tough competitive business
which if it is to survive requires a high level of commitment
from its workers. The Company felt that the worker was unable
to give such a commitment even after the most severe warnings.
RECOMMENDATION:
5. Having heard the submissions of the parties, the Court
considers that the Company acted completely within the
disciplinary procedures by making arrangements to ensure the
claimant was represented by his Trade Union and that he had
adequate opportunity to put forward his side of the issue.
The Court does not regard the explanation given by the worker as
an adequate excuse for his absence and in view of the fact that he
was on a "final warning" arising from other issues, the Court
considers that by being absent without permission from his
work-station on the night in question, the worker displayed
blatant disregard for the disciplinary procedures as well as for
the Company's work arrangements and the normal courtesies between
worker and supervisor.
Accordingly, the Court considers that the Company action was
reasonable and does not find grounds to recommend concession of
the Union claim for re-instatement of the worker.
~
Signed on behalf of the Labour Court
Kevin Heffernan
______________________
17th August, 1989 Chairman.
D.H./J.C.