Labour Court Database __________________________________________________________________________________ File Number: CD89619 Case Number: AD8974 Section / Act: S13(9) Parties: DUBLIN GAS - and - FEDERATED WORKERS UNION OF IRELAND |
Appeal by the Company against Rights Commissioner's Recommendation No. S.T. 234, concerning the downgrading of one worker following disciplinary action.
Recommendation:
5. Having considered the submissions of the parties, the Court
does not find reason to alter the intent of the Rights
Commissioner's Recommendation and is therefore of the view that
the respondent should be required to work for a period of four
weeks as a fitter and then on re-instatement as a charge-hand
should have a trial period of twelve months.
The Court so decides.
Division: CHAIRMAN Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD89619 APPEAL DECISION NO. AD7489
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DUBLIN GAS
and
FEDERATED WORKERS UNION OF IRELAND
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. S.T. 234, concerning the downgrading of one
worker following disciplinary action.
BACKGROUND:
2. The worker concerned with the Rights Commissioner's
recommendation has been employed by the company for twenty four
years. He had served his apprenticeship as a gas fitter, worked
as a gas-fitter and subsequently was promoted to the position of
chargehand gas-fitter. The worker was the subject of disciplinary
action by the company, following his failure to comply with
procedures as outlined and reiterated by management. Arising from
the disciplinary action, he was demoted to the position of
gas-fitter and was suspended without pay for a period of one week.
The union requested a Rights Commissioner's investigation into the
matter as it claimed that the penalties imposed on the worker were
too severe. A Rights Commissioner's investigation was held on
24th July, 1989. His recommendation is as follows:-
"Recommendation
The investigation by the Company of the offences committed
by the Claimant was very thorough and in conformity with the
agreed procedures. The paper work submitted by both parties
at the Investigation was of the highest order.
No charge was made that the Claimant gained financially from
prioritising the Contractors work. In these circumstances
the punishment of loss of position with a weekly loss of
#37.85 is very harsh. In addition he has to suffer the
odium of returning to work with men he has supervised for a
number of years.
However, he has shown a remarkable disregard for proper
procedures which must now be an integral part of the new
Dublin Gas Company's operations, having regard to public
concern at the possibility of gas explosions in populated
areas.
In this regard he has to accept some form of discipline, and
he also must show by his performance over a period, that he
is a fully integrated member of the supervisory staff who
accepts fully all the procedures, and implements them
without reservation.
Accordingly, I recommend that the claimant stands suspended
from Chargehand duties until August 31st 1989.
He should resume such duties thereafter for a trial period
to 1st September, 1990. If his performance warrants it, he
should be confirmed by the Company in his former position as
Chargehand with all his privileges restored."
The recommendation was accepted by the union and worker but was
rejected by the company. The company appealed the recommendation
to the Labour Court on 7th September, 1989. The Court heard the
appeal on 12th October, 1989.
UNION'S ARGUMENTS:
3. 1. The Company took disciplinary action against the worker
because of incidents which took place at work and arose out of
a friendship with the foreman of one of the central heating
contractors. There are six different charges against the
worker. It is the Union's contention that the greater part of
the Company's complaint is that it contravenes clause 19.6.11
of the Comprehensive Work Agreement. Five complaints stem
from this.
2. Clause 19.6.11 of the Comprehensive Work Agreement
states:-
"Engaging in activities on one's own account for others,
which conflict with the interest of the Company or
involve relationships with the public as a Company
employee".
In examining the worker's actions within the context of Clause
19.6.11 the following points are relevant
(a) "Engaging in activities on one's own account". The
Company have never accused or even alleged that the worker
benefitted in any way from the work he performed on the jobs
in dispute.
(b) "Engaging in activities on one's own account, or for
others". The worker never carried out work for others, all
the work done by him or on his instructions was for and to the
benefit of the Gas Company.
(c) "Engaging in activities on one's own account or for
others "which conflict with the interests of the Company".
The contractor in question is the biggest and most successful
on the Gas Company panel and is still engaged. When the
Company was taken over by Bord Gais the building up of gas
sales was established as its main objective. The central
heating market was targeted as one of the main means of
achieving sales objectives. The worker assisted the main
contractor to the company's heating sales objectives by
speeding jobs up. In these circumstances, the company cannot
sustain an accusation against the worker that he is guilty of
actions "which conflict with the interests of the Company".
3. There are two complaints made by the Company against the
worker under Clause 19.6.1 of the Comprehensive Work
Agreement, detailed as follows:-
(A) "Insubordination, in that he did not follow instructions
issued by his supervisor concerning TNMD and EXMD jobs during
the period November 1988 to February, 1989." In response to
this accusation, the worker has said that he did not wilfully
disobey instructions from his supervisor. He believed, that
provided all documentation was processed, even
retrospectively, that it met Company requirements.
(B) "Failure to perform work properly assigned being
negligent in his Chargehand duties".
Having regard to this accusation against the worker, the
Company made an assumption, that when he was working on
contractor jobs the worker was negligent in not carrying out
other work. The Company have never specified or quantified
the work he failed to do. In doing the contractor jobs, the
worker was carrying out Gas Company work which was proper to
him.
4. The complaint against the worker under Clause 19.6.5. is
"Falsification of official records".
The Union contends that the Company have over-reacted in
accusing the worker of "Falsification of official
records". The word "Falsification" infers that a person
would deliberately set out to change, mislead or alter.
This never occurred in the worker's case. He did make
simple errors in regard to addresses which could have
led to accounts going to wrong consumers. This action
is attributable to human error.
5. The complaint against the worker under Clause 19.6.7. is
as follows:-
"Unsatisfactory work performance ignoring Company
procedures in creating and processing work".
The Company claim that the worker by-passed computer
control systems in carrying out his work. The worker
admitted to doing this but his purpose in doing so was
simply to get the work done speedily. All necessary
documentation was fully processed after the work had
been completed.
6. The complaint against the worker under Clause 4.2.3.
is:-
"Unsatisfactory work performance ignoring Company
procedures in creating and processing work".
The Company are again operating on assumptions. They
claim that because the worker was doing work on
contractor jobs he must have left the job without
permission. In normal circumstances a worker charged
with this complain would be given details of times,
dates, length of absence when the alleged offences
occurred. No such evidence has been produced. In doing
contractor jobs, the worker was carrying out Gas Company
work and so was not absent from the job at all.
7. The worker never acted with malice. He believed at all
times that he was acting in the interest of his employer
and the consumer. The Rights Commissioner who conducted
a thorough investigation into the allegations made a
fair and equitable recommendation.
COMPANY'S ARGUMENTS:
4. 1. Various memo's from Management issued to supervisors and
chargehands in 1988/1989 emphasising the necessity of
following correct procedures. The worker ignored those memos
(details supplied to the Court). The worker's supervisor
spoke to him in November, 1988 and expressed concern about the
number of "hand raised" job cards he was processing. This
discussion demonstrated a desire on the Supervisors' part to
ensure all work was processed in accordance with procedures.
2. In March, 1989, it emerged that the worker concerned
with the claim disregarded the instruction of his supervisor.
(issued November, 1988). Given the extent, duration and
complexity of activities (details supplied to the Court)
carried out by the worker in the interests of the contractor,
the Company contend that he was acting in the interests of the
contractor and contrary to his employer's interest.
3. The worker held a position of trust and influence in his
role as Company chargehand. This trust was seriously breached
by him both when engaging in activity not specific to his
duties, thus compromising his superior, or when directing
others to do work which was not properly assigned to them,
thus compromising his subordinates. In view of these serious
breaches of trust, the Company is not prepared to have the
worker continue to operate as a chargehand gas fitter as it
would seriously undermine Company procedures.
4. Company investigations were based solely on Company
records/documentation and interviews with staff involved. At
no time did the Company suggest that the worker gained
financially from his activities on behalf of the contractor.
However, financial benefits could easily accrue to a
contractor in this situation.
5. The Rights Commissioner found that the investigation by
the Company of the offences committed was very thorough and in
conformity with agreed procedures. He also found that the
worker showed a "remarkable disregard" for proper procedures
which must be an integral part of the Company's operation,
having regard to public safety. The Company must resist any
recommendation regrading the worker to his former position of
chargehand gas fitter, a position in which he has already
seriously compromised his superiors and subordinates over a
period of time.
DECISION:
5. Having considered the submissions of the parties, the Court
does not find reason to alter the intent of the Rights
Commissioner's Recommendation and is therefore of the view that
the respondent should be required to work for a period of four
weeks as a fitter and then on re-instatement as a charge-hand
should have a trial period of twelve months.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
2nd November, 1989 --------------
A. McG/U.S. Chairman