Labour Court Database __________________________________________________________________________________ File Number: CD88926 Case Number: AD899 Section / Act: S13(9) Parties: SYDNEY COOPER DISTRIBUTION LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union against a Rights Commissioner's Recommendation concerning the suspension and proposed dismissal of a worker.
Recommendation:
6. Having considered the submissions made by the parties, the
Court finds no grounds for altering the Rights Commissioner's
recommendation which it upholds.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Mr Walsh
Text of Document__________________________________________________________________
CD88926 DECISION NO. AD989
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: SYDNEY COOPER DISTRIBUTION LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against a Rights Commissioner's
Recommendation concerning the suspension and proposed dismissal of
a worker.
BACKGROUND:
2. The worker concerned had been employed by the Company in its
warehouse in Ballymount since 1983, as a warehouse operative. The
rate of pay for this grade is #159.48 per week. In September,
1987, he was offered and accepted a transfer to a small warehouse
dealing exclusively with Armstrong World Industries products. His
salary was increased to #187 per week on the basis of the
increased responsibility and earlier starting time i.e. 8.30 a.m.
instead of 9 a.m. The Company maintains that they received a
large number of complaints from Armstrong's management that the
worker was not performing well and that the warehouse was not
being opened on time in the mornings. The Company also says that
verbal warnings were given on a number of occasions to the worker
and that in June, 1988, he was given a final warning which stated
that if the position did not improve he would be dismissed. On
4th July, 1988, the worker arrived into work late and the Company
informed him of their intention to terminate his employment on the
basis of his unsatisfactory time-keeping. Following
representations by the Union, the Company offered to employ the
worker in his old job in the Ballymount warehouse but he would be
placed on lower warehouse rate of #159.48 per week and his
employment was to be subject to a 6 month probationary period.
The worker reluctantly agreed to this and returned to his old job
on 11th July, 1988. During August, 1988, the Union advised the
Company that it was disputing the decision to remove the worker
from Armstrong's Warehouse and reduce his pay. The Company would
not change their decision. The Union then referred the matter to
a Rights Commissioner on 24th August, 1988. The Company suspended
the worker without pay from that date as he was unwilling to
accept their position.
3. On 17th October, 1988, the Rights Commissioner issued the
following recommendation:-
"I recommend that the worker accepts the Company proposals as
per the letter of the 13th July modified by deletion of point
(1) and that he returns to work forthwith at Ballymount. I
recommend further that the Company amends the suspension
without pay to one of suspension with pay for a period of 5
weeks."
Note: The worker was mentioned by name in the Rights
Commissioner's Recommendation. Point (1) of the letter of
13th July relates to the 6 month probationary period.
The Recommendation was rejected by the Union who appealed it to
the Labour Court on 28th November, 1988, under Section 13(9) of
the Industrial Relations Act, 1969. The Court heard the appeal on
26th January, 1989.
UNION'S ARGUMENTS:
4. 1. The Union contends that the worker did not have excessive
'lates.' During the June/July, 1988, period the worker had to
bring his brother to hospital every 2nd morning for treatment
following a car crash. Although this did put him under some
pressure he usually arrived on time. Apart from the July,
1988, incident, the only other occasion that he was spoken to
about time-keeing was around May/June, 1988.
2. Prior to the incident his work record was excellent and he
had in fact been complimented by Armstrongs on the condition
of the warehouse. Indeed, he would not have been offered the
job by the Company if his record had been poor. There is not
sufficient evidence to support the Company's contention that
he had a bad record.
3. The Union believes that the Company has acted too harshly
and could have resolved the matter without removing him and
reducing his wage. Whilst the Union is seeking the workers
re-appointment to Armstrongs warehouse, it is aware that the
Company's actions may have damaged the workers standing with
Armstrongs and it may not be in his best interests to go back
to that warehouse. However, he should certainly have his rate
of #187 per week restored.
COMPANY'S ARGUMENTS:
5. 1. The worker concerned was offered and accepted the
promotional opportunity with the Company. He agreed to
fulfil the duties and responsibilities and conditions of the
contract with Armstrong's. For this he received a higher rate
of pay. Over a sustained period of time and despite being
given warnings and every opportunity to improve, he failed to
reach the standards required to fulfil the terms of the
contract. The Company had no choice but to remove him from
the position. In re-employing him the Company has been more
than generous.
2. An agreement was reached, which the worker accepted at the
time, returning him to the position he held prior to
September, 1987. He only held the position with the higher
rate for a period of approximately 9 months. There is no
justification whatsoever for keeping him on the higher rate.
3. He accepted the terms of the agreement in respect of his
re-employment. He subsequently rejected the Company's
position and referred his case to a Rights Commissioner. He
did so of his own free will. He therefore, has no entitlement
to pay for the period of his suspension.
DECISION:
6. Having considered the submissions made by the parties, the
Court finds no grounds for altering the Rights Commissioner's
recommendation which it upholds.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
______________________
7th February, 1989. Deputy Chairman
B.O'N./J.C.