Labour Court Database __________________________________________________________________________________ File Number: CD89168 Case Number: AD8979 Section / Act: S13(9) Parties: DEPARTMENT OF ENERGY - and - FEDERATED WORKERS' UNION OF IRELAND |
Appeal by the Union of Rights Commissioner's recommendation No. ST 485/88 concerning the dismissal of a forestry worker.
Recommendation:
6. Having considered the submissions from the parties and the
additional information furnished after the hearing, the Court
considers that the actions of Coillte Teoranta in terminating the
employment of the claimant in this case was fully justified.
However, taking into account the appeal by the Union and the
claimants personal circumstances, the Court concludes that the
appelant should be afforded a final opportunity to show that he
can now perform as a reasonable employee. This should be through
his re-employment on a temporary basis for a trial period of
twelve months. At the end of that period if his attendance and
work performance record is satisfactory Coillte Teoranta should
consider his re-instatement as a permanent employee.
The Court so decides.
Division: Ms Owens Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD89168 APPEAL DECISION NO AD7989
INDUSTRIAL RELATIONS ACT, 1969
SECTION 13(9)
PARTIES: DEPARTMENT OF ENERGY
COILLTE TEORANTA
AND
FEDERATED WORKERS' UNION OF IRELAND
SUBJECT:
1. Appeal by the Union of Rights Commissioner's recommendation
No. ST 485/88 concerning the dismissal of a forestry worker.
BACKGROUND:
2. The worker concerned had been employed for 24 years prior to
his dismissal on 22nd January, 1988, following frequent absences
from work. His absence record is as follows:-
1982/83 60 days absence
1983/84 74 days absence
1984/85 78 days absence
1985/86 62 days absence
1986/87 37 days absence
April/October 1987 27 days absence
The Company maintains that the dismissal was the culmination
of a process begun in 1983. In 1983, the worker was advised
by the Company, along with all others with high levels of
absenteeism, that improvement in attendance was required. In
1985, he was again written to and warned that continued poor
attendance could result in the termination of his employment.
A final written warning was issued to the worker towards the
end of 1985. Following continued high absenteeism, the
Company, in August, 1987, asked the worker to furnish a
written explanation for his absences. The worker replied
that all his absences were the result of genuine illness over
a period of 5 years relating to a back injury, which is quite
common to forestry workers. The absences had been certified
by a doctor. In October, 1987, the Company informed him that
he was to be dismissed with effect from 18th December, 1987,
on account of his absenteeism. This was deferred to 22nd
January, 1988, following representations on his behalf.
3. The Union contended that it was unreasonable to dismiss
the worker as most of his problems stemmed from an illness 5
years earlier, and harassment by his immediate supervisor.
The Union further contended that he had not been afforded the
normal procedures prior to dismissal. His Union had not been
informed of any warnings received by the worker. The issue
was referred to a Rights Commissioner for investigation. On
30th December, 1988, the Rights Commissioner issued the
following recommendation:-
"...I accept that the claimant did suffer a degree of
harassment from his supervisor. I also noted that
the supervisor was not present at the investigation,
and no reason was advanced for his absence. Despite
this, I cannot ignore the fact that the claimant's
attendance record was very poor by any standard. He
also appears to have rejoined his Union after the
event. In my view, his problems with his superior
could have been handled much better by remaining a
member, rather than capitulation by resignation.
These problems cannot alone explain his behaviour,
and on the basis that he was afforded every
opportunity to improve, I have to recommend that his
dismissal was fair in the circumstances."
The Union rejected the Rights Commissioner's recommendation and on
21st February, 1989, appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 2nd May, 1989.
UNION'S ARGUMENTS:
4. 1. The Union does not deny that the worker had an
unacceptable level of absenteeism, however, this was certified
by a medical doctor. When on a number of occasions he
returned to work too soon, it appears that every effort was
made by his immediate superior to make things as difficult as
possible by insisting that he work overtime even though he was
having difficulty in getting through the normal day. This
urgency to get back to work resulted from pressure by the
Company, which had embarked on a campaign to improve
attendance levels.
2. Greater consultation should have taken place with the
Union prior to the decision to dismiss the worker. While the
Union may have accepted that the employer had grounds to take
some form of disciplinary action, dismissal is to harsh in the
circumstances.
3. The Union is appealing that he be given the chance to
commence work again in the forestry service. He is now fully
fit and available for work. The Union would accept that he be
re-employed on a probationary basis to allow for a monitoring
of his performance. Failing that, his chances of future
employment are remote.
COMPANY'S ARGUMENTS:
5. 1. The process begun in January, 1983, was similar to that
employed for many forest workers whose level of attendance was
unacceptably high. In some cases that has also led to
dismissal and in many other cases the warnings have been
heeded and a satisfactory relationship established. The
worker was given ample warnings and sufficient time in which
to remedy the situation.
2. The Company is operating within a commercial environment
and the continued high cost of absenteeism will make it
increasingly difficult to sustain employment against
competition from other companies in the afforestation
industry. The Company could not accept the worker's level of
attendance.
3. The dismissal decision was carefully arrived at in the
light of his attendance record over a lengthy period and
following ample warnings of the seriousness of the situation.
He was also given an opportunity to explain his absences and
that explanation did not suggest any particular circumstances,
unique to the worker, sufficient to permit his continued
employment.
DECISION:
6. Having considered the submissions from the parties and the
additional information furnished after the hearing, the Court
considers that the actions of Coillte Teoranta in terminating the
employment of the claimant in this case was fully justified.
However, taking into account the appeal by the Union and the
claimants personal circumstances, the Court concludes that the
appelant should be afforded a final opportunity to show that he
can now perform as a reasonable employee. This should be through
his re-employment on a temporary basis for a trial period of
twelve months. At the end of that period if his attendance and
work performance record is satisfactory Coillte Teoranta should
consider his re-instatement as a permanent employee.
The Court so decides.
~
Signed on behalf of the Labour Court,
Evelyn Owens
__16th__November,__1989. ___________________
B. O'N. / M. F. Deputy Chairman