Labour Court Database __________________________________________________________________________________ File Number: CD89552 Case Number: AD8978 Section / Act: S13(9) Parties: ARTANE/BEAUMONT FAMILY RECREATIONAL CENTRE LIMITED - and - IRISH NATIONAL UNION OF VINTERS' GROCERS' |
Appeal by the Union against Rights Commissioner's Recommendation No. S.T. 289/89.
Recommendation:
5. The Court finds that, whilst the reasons put forward were
appropriate to disciplinary action, they did not constitute
substantial grounds to warrent dismissal. Accordingly the Court
considers the claimant was unfairly dismissed.
Given the views expressed by the parties in their written and oral
submissions and given the nature of the employment it is the view
of the Court that a lack of trust exists between the parties which
would be irreconcilable if the claimant were to be reinstated.
The Court considers therefore that reinstatement would be
inappropriate. It is the view of the Court that a compensation
payment of #2,000 should be made to the claimant.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD89552 APPEAL DECISION NO. AD7889
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: ARTANE/BEAUMONT FAMILY RECREATIONAL CENTRE LIMITED
and
IRISH NATIONAL UNION OF VINTERS' GROCERS'
AND ALLIED TRADES ASSISTANTS
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. S.T. 289/89.
BACKGROUND:
2. The Artane/Beaumont family recreation centre is a community
based project, mainly managed on a voluntary basis with the help
of full-time employed staff. The worker concerned in this dispute
was employed as a lounge chargehand from 27th September, 1986
until his dismissal on 17th July, 1989. Early in 1989, Management
became aware of discrepancies associated with the bar audit which
is conducted by a professional auditor on the basis of a twenty
day cycle. Discrepancies of between #300 and #400 regularly
occurred, but this was offset against ullage. The bar's suppliers
indicated that this was a very high level, and indicated their
belief that the system was being abused.
In the course of the Audit period 11th May, 1989 to 21st May, 1989
an overall deficit of #1,433 was discovered. As a result of this,
a special audit took place on 8th June, 1989. A special meeting
of the Officer Board (who are directly responsible for the running
of the centre) was convened on 13th June, 1989 to discuss the
situation. The trustees of the centre were also invited to
attend. At this meeting it emerged that a consignment of 12 free
kegs of lager were delivered during the accounting period to 7th
June, 1989.
The worker concerned in this dispute informed the Centre's
secretary that he had taken delivery of a consignment of 12 kegs
of free lager on 17th May, 1989. This later proved to be
incorrect, the actual date of delivery being 24th May, 1989. The
worker did not enter the delivery docket in the Goods Inwards
Book, which the Centre alleges he should have done.
The Centre alleged, that the kegs themselves were left in a
passageway, obstructing a fire exit, contrary to specific
instructions. The kegs are unaccounted for to date. The worker
claims to have deposited the delivery docket in the cash register
on the day of delivery. The docket was not found in the cash
register during the audit conducted on 8th June, 1989 but
reappeared in the register on 9th June, 1989.
The worker claimed he had been advised by telephone to say that he
had not yet put the kegs in stock. It emerged during the course
of investigations that the worker had taped a telephone
conversation between himself and the bar manager without the
consent of the latter. The centre's Management regarded this as
unethical and unacceptable conduct and something which they
believed rendered the worker untrustworthy.
On 15th June, 1989 the worker telephoned the Centre's secretary
and informed him of the instruction he had been given regarding
the free-delivery of kegs. He also said that it was a genuine
mistake that he had mixed up the delivery dates of the free kegs
of beer.
The worker was suspended with pay for one week, pending
investigations into the matter. Following another meeting between
the parties, the worker was suspended for a further week. On 17th
July, 1989 he was dismissed without notice. The Union placed
official pickets on the premises on 29th July, 1989. The matter
was referred to the conciliation service of the Labour Court, and
a conciliation conference took place on 24th July, 1989 without
agreement being reached. On 9th August, 1989 the matter was
referred to a Rights Commissioner for investigation and
recommendation. On 10th August, 1989 the Rights Commissioner
issued the following recommendation in the matter.
"A serious dispute exists and picketing is taking place. In
the context of a voluntary community type employment this is
regrettable as it does, in my view, amount to worker
fighting worker. The management Board is comprised of
ordinary working class people. They could not be conceived
as exploitive type employers by any stretch of the
imagination. The weekly gross wage of the claimant of
#265.70 surely is an indication of this fact. I am
satisfied on the evidence including a letter from a
supporting Union, that intimidation and abuse of Board
members is taking place on the picket line, and I feel I
must make this point. This makes the job of reconciliation
very difficult if not impossible.
On the merits of the case, I have to find that the claimant
was afforded every opportunity of a proper defence and
representation before the fact of dismissal, which I find to
be justified in the circumstances. I therefore recommend
that his claim for reinstatement fails. I am convinced
however that no case was made in relation to fraud or
stealing by him. He was dismissed for failure to inform of
the arrival of a unique consignment of kegs valued over
#1,000. Failure to complete the necessary paper work and
for a total breach of ethics by taping a conversation with
his superior without his knowledge or consent. The employer
has therefore justifiable reasons for losing all confidence
and trust in him as a member of line management and as an
employee. In the circumstances that he may have suffered a
loss in earnings during the processing of this case and in
consideration of the ending of the dispute I recommend that
he receives the sum of #1,500 by way of compensation for
such loss without prejudice or precedent.
Finally, I wish to emphasise that the claimant was not
charged with fraud or stealing he was fairly dismissed for a
gross lack of proper judgement as a supervisor. He should
have no fear for his good name in relation to honesty. This
was of great concern to him during the investigation.
The Union on behalf of the worker appealed the Rights
Commissioner's recommendation to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. A hearing of the
appeal took place on 28th August, 1989.
UNION'S ARGUMENTS:
3. 1. The worker concerned in this dispute was employed by the
Artane/Beaumont family recreation centre and as such the
relationship was that of employer/employee. The worker's
rights and obligations vis a vis the centre must be governed
by this relationship.
2. There is no question of fraud in relation to the worker
and this has been emphasised by the Rights Commissioner. The
worker did fail to inform the Centre's management of the
arrival of a unique consignment of kegs. He dealt with the
delivery as he would have dealt with any other. He checked
the contents, signed the delivery docket as correct and left
the delivery docket in the register for the attention of the
bar manager. There was no obligation either written or verbal
on the bar manager to handle the delivery in question in a
different manner from any other. An examination of the
worker's duty roster will confirm this (details supplied to
Court).
3. The worker completed all the paper work which his duties
obliged him to in relation to the delivery. He checked the
order, signed the delivery docket and placed the docket in the
cash register for the attention of the bar manager. It was
the Bar Manager's duty to enter the delivery docket into the
Delivery book and this he did on 9th June, 1989.
3. 4. The Union feels that the Rights Commissioner's comment
regarding "worker fighting worker" is emotive and is of no
consolation to the dismissed worker. There was no
intimidation by the Union's members of any other staff during
the duration of the strike and this fact was accepted by the
Club Chairman at the conciliation conference. Any
intimidation which did take place was the work of outsiders
not in the control of the Union. The Rights Commissioner
believes that the job of reconciliation is "difficult if not
impossible". The Union would take issue with this statement.
The other members who were on strike have returned to work and
are working normally. There is no ill feeling between them
and their colleagues represented by the other Union in the
centre. There is no animosity either between the worker and
the members of the club, the majority of whom supported him by
honouring the picket-line.
5. The Union does admit that the worker tape-recorded a
telephone conversation between himself and the bar manager.
In hindsight it is agreed that this is not a very ethical
practice, but it must be taken in the context of a difficult
situation in which the worker was only trying to protect
himself.
6. The worker does admit that he made a mistake with regard
to the date of delivery of the free kegs of beer. Given that
he was only challenged on the issue four weeks after the
delivery, this hardly constitutes a grevious error. The
confusion was added to by the fact that the delivery docket
was actually dated for the 19th May, 1989, but did not arrive
on the premises until 24th May, 1989. The Union does not
accept that any of the reasons given by the Rights
Commissioner either individually or together constitute
substantial grounds to warrant dismissal. If the Centre
believes that disciplinary procedures are warranted it should
use the disciplinary/grievance procedure governing the trade.
The worker concerned has had no previous warnings of any kind
in regard to his work or work practices.
7. The worker is himself a member of the Centre and is also
a member of the local community which uses the centre. His
dismissal has very far reaching consequences both for his
personal reputation and for his future employment prospects.
CENTRE'S ARGUMENTS:
4. 1. The worker concerned in this dispute held the position
of chargehand for which he was paid a significant differential
above that of ordinary barman. The onus of responsibility
upon him was therefore correspondingly greater. The Centre
believes that the worker's behaviour was such that he could no
longer be retained in the employment of the Company.
4. 2. The worker failed to inform management of the delivery
of 12 kegs of free beer. No trace of the kegs has been found
and the loss to the Centre is considerable.
3. The worker lied to and misled management as to the date
of delivery of the 12 kegs. Information on the very existence
of the free beer was only made available to Management after
3-4 weeks and during the course of a major investigation. The
worker signed for receipt of the 12 kegs, but the delivery
docket in his charge disappeared and only re-appeared on 9th
June, 1989 or thereafter.
4. Contrary to directions clearly contained in his written
conditions of employment, the worker did not store the kegs in
the designated area.
5. The worker taped a telephone conversation between
himself and the bar manager. This unethical action casts
serious doubts on his fitness to serve as a senior employee.
6. The bar manager who was involved in the dispute at the
Centre resigned of his own freewill. Both he and the Centre
have accepted the Rights Commissioner's recommendation
relating to his resignation. The worker involved in the
current dispute has totally alienated himself from the centre
by his actions and the differences are irreconcilable. At a
meeting held on Thursday 27th July, 1989 between the parties,
the Union was requested to withdraw strike action and adopt
normal industrial relations procedures. This was refused.
The subsequent behaviour of some of the pickets was
deplorable. The Centre is of the view that the worker
concerned orchestrated the dispute and obstructed every effort
to remove pickets. The Centre was disappointed by the Rights
Commissioner's award of #1,500 to the worker but accepted the
recommendation in order to have picketing ended. The Centre
believes that there are no grounds for upholding the Union's
appeal and requests the Court to so recommend.
DECISION:
5. The Court finds that, whilst the reasons put forward were
appropriate to disciplinary action, they did not constitute
substantial grounds to warrent dismissal. Accordingly the Court
considers the claimant was unfairly dismissed.
Given the views expressed by the parties in their written and oral
submissions and given the nature of the employment it is the view
of the Court that a lack of trust exists between the parties which
would be irreconcilable if the claimant were to be reinstated.
The Court considers therefore that reinstatement would be
inappropriate. It is the view of the Court that a compensation
payment of #2,000 should be made to the claimant.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
14th November, 1989 ----------------
P.F./U.S. Deputy Chairman