Labour Court Database __________________________________________________________________________________ File Number: CD88775 Case Number: LCR12223 Section / Act: S67 Parties: COMER INTERNATIONAL LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Claim, on behalf of four employees, for the lifting of a final written warning.
Recommendation:
5. The Court, having considered the submissions made by the
parties and having studied the provisions of the Company/Union
Agreement, recommends that the matter be resolved by Written
Warning (Stage 2) under Clause 28(b) of the Agreement effective
from 18th June, 1988.
Division: Mr Fitzgerald Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD88775 RECOMMENDATION NO. LCR12223
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: COMER INTERNATIONAL LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claim, on behalf of four employees, for the lifting of a final
written warning.
BACKGROUND:
2. The Company is engaged in textile manufacture in Castlecomer,
Co Kilkenny. The four workers concerned are employed on the
thirty two hour weekend shift which consists of two sixteen hour
shifts running from 8am to midnight on Saturday and 4pm on Sunday
to 8am on Monday. The incident which gave rise to the dispute
occurred on Saturday 18th June, 1988. The four workers were due
to go on a twenty minute break at 8.30pm. The Union contends that
three of the four did not commence their break until some time
after 8.30pm due to machine/production requirements. Very shortly
after 9pm the Assistant Plant Manager approached the factory in
his car and observed the four workers in a field adjacent to the
Company premises, approximately twenty yards from the factory
building. He instructed the men to return to work, which they
did. The Plant Manager subsequently spoke to the four workers
about this incident, pointing out that they had been off the
Company premises and beyond their scheduled break time and that he
considered this to constitute a serious breach of the working
agreement. The Company's main concern was the fact that they were
off the premises. On 25th June the workers were issued with a
Stage 3 final warning in accordance with Clause 28 of the
Company/Union Agreement (see Appendix A). Management indicated
that it considered the incident to constitute serious misdemeanour
in accordance with Clause 29 of the Agreement (see Appendix B).
Arising from this, an unofficial two day strike took place. On
Tuesday 28th June all operatives returned to work to allow the
matter to be processed through the agreed grievance procedure. At
a local level meeting on the same date the Union sought to have
the incident dealt with by the shift foreman, as a matter
necessitating cautionary advice or, at most, as a matter
appropriate to Clause 28 (minor misconduct) and the issue of a
Stage 1 verbal warning effective from 18th June, 1988. No
agreement was reached and the matter was referred on 7th July,
1988 to the conciliation service of the Labour Court. A
conciliation conference was held on 30th August, 1988. Again no
agreement was reached and the matter was referred, on 10th
October, 1988 to a full hearing of the Labour Court. The hearing
took place on 15th December, 1988.
UNION'S ARGUMENTS:
3.1 The Union contends that the Company's proposed disciplinary
action is totally unjustified and unwarranted. It considers
that such action is in direct contravention of the Company/
Union House Agreement and does not represent a common sense
approach to the situation.
3.2 At most, the incident of 28th June constituted minor
misconduct and is appropriate to paragraph two of Clause 28
of the House Agreement. Time keeping offences and absence
are in fact cited as examples of minor misconduct under this
Clause. The workers were not informed by Management prior to
the incident that they were not permitted to be outside the
factory during their break. It was common practice for
workers to go outside during breaks. The Union contends
that, at most, a verbal warning under Clause 28 would be the
appropriate disciplinary action.
3.3 The day in question was particularly warm and the workers had
been on duty since 8am. The atmosphere in the factory was
noisy, hot and humid. The workers simply went outside to get
fresh air and a break from the atmosphere in the factory.
They saw nothing objectionable in what they were doing.
3.4 Three of the workers started their break late due to
production reasons. One worker did not start his break until
8.40pm. As the men returned to work they observed other
workers in the canteen who had been there when they went
outside.
3.5 The use of Clause 29 of the House Agreement, which relates to
serious misconduct, is totally inappropriate in this case.
The incident of 18th June is not at all in keeping with the
matters listed as examples of serious misconduct under this
Clause.
3.6 Subsequent to the incident Management indicated in writing to
the Union that "Employees are not permitted outside the
factory building at any time including official breaks
without the permission of the Supervisor and the Company will
consider transgression of same as a serious breach of the
working agreement". The fact that this clarification was
required after the incident, indicates that ambiguity had
existed on the part of the Company in relation to this
matter.
3.7 The workers were not neglecting their work and were not
attempting to "hide out". Such action would be readily
identified by the foreman.
COMPANY'S ARGUMENTS:
4.1 The Company regard this absence from work without
authorisation as being a serious misdemeanour in accordance
with Clause 29(k) of the Company/Union Agreement. The men
were outside the premises without permission and were away
from their work stations over ten minutes after the
conclusion of their normal break time. They had not sought
permission to leave the premises, nor had there been any
indication of a necessity for them to go late on their
breaks.
4.2 It is established practice for an employee to seek permission
if he/she wishes to leave the premises. On any previous
occasion where an employee wished to leave the premises,
permission was sought and not unreasonably withheld where the
occasion warranted it. It is clear that the reason why the
four employees in question did not seek permission to leave
the premises on this occasion was that they knew that such
permission would be refused. Their failure to ask permission
and just walk off the premises showed their contempt for the
normal regulation of the Company's business.
4.3 The standard of the remarks used by the employees in
attempting to denigrate Management's investigation of the
issue underlines their attitude to the situation. The fact
that they were uncooperative and unwilling to admit to having
done anything wrong during the course of the Management
investigation reinforces this point.
4.4 This group and/or their shop steward led an unofficial walk
off the floor which resulted in an unofficial strike.
4.5 The Company contends that, in all the circumstances, the
proposed disciplinary action of a Stage 3 warning is
appropriate.
RECOMMENDATION:
5. The Court, having considered the submissions made by the
parties and having studied the provisions of the Company/Union
Agreement, recommends that the matter be resolved by Written
Warning (Stage 2) under Clause 28(b) of the Agreement effective
from 18th June, 1988.
~
Signed on behalf of the Labour Court
19th January, 1989 Nicholas Fitzgerald
AK/PG --------------------
Deputy Chairman
APPENDIX A
Clause 28 of the Company/Union Agreement
28. Disciplinary Procedure
The parties agree that the primary aim of the disciplinary
procedure is to help the individual, whose performance or conduct
falls below company requirements, to achieve the necessary
improvement. Disciplinary problems require immediate management
attention and can usually be corrected by an early approach to the
employee.
In cases of minor misconduct or poor performance which shall
include poor timekeeping and absenteeism, the parties agree to the
following procedure:
a) Stage 1 - Verbal Warning
The supervisor will warn the employee verbally of the specific
aspect of the work or conduct which is below standard (stating
clearly that this is the first warning) and will advise the
improvement which must be made. The supervisor will advise
the Production Manager that the first warning has been issued.
This verbal warning shall be carried out in the presence of
the shop steward.
b) Stage 2 - Written Warning
In the event of no improvement, a written warning shall be
issued in the presence of the shop steward with a copy to the
union.
c) Stage 3 - Final Warning
The Manager will issue the employee with a final warning,
making it clear that the employment will terminate if conduct
or work does not improve. This will be confirmed in writing
to the employee by the Manager with a copy to the union.
d) Stage 4 - Dismissal
The Manager will approve the dismissal of an employee if
his/her conduct does not improve to a satisfactory level after
the final warning and following a final interview.
Each warning shall have a life of three (3) months and thereafter
the employee shall revert to the previous warning stage, if any,
which then in turn will have a lifetime of three (3) months.
The above procedure is intended to give every opportunity to the
employee to improve his/her conduct or work performance.
APPENDIX B
Clause 29 of the Company/Union Agreement
29. Misconduct
The parties agree that it is impractical to list every possible
item of misconduct. However, as an example, the following
breaches of good conduct would make an employee liable to
disciplinary action, including dismissal, without use of the
disciplinary procedure:-
a) Flagrant disregard for company safety procedures.
b) Theft, including taking or using company property without
written permission.
c) Wilful damage or unauthorised interference to company property
and equipment.
d) Falsifying records or punching another employee's clock-card
or having own clock-card punched by another employee.
e) Being under the influence of alcohol or drugs at work.
f) Assault on another employee or management personnel.
g) Insubordination.
h) Failure to account for company stock or monies.
i) Failure to carry out a lawful instruction.
j) Disclosure to the detriment of the company of any information
concerning the company's business.
k) Any other serious default or misdemeanour.
At all stages of the procedure an employee may request that
his/her shop steward be present. In no case will disciplinary
action be taken until an employee has had the opportunity to state
his/her position.
In cases where employees are being disciplined for poor
performance, the company will endeavour to identify clearly where
the employees are found wanting. Likewise, the company will also
help the employees to improve their performance.
The union shall have the right to make representations when it
deems it necessary.