Labour Court Database __________________________________________________________________________________ File Number: CD90352 Case Number: AD9031 Section / Act: S67 Parties: BOXMORE PLASTICS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation Number C.W. 300/1989 concerning a final written warning and suspension without pay.
Recommendation:
5. The Court having considered the submissions of the parties
oral and written finds no grounds to alter the recommendation of
the Rights Commissioner. The Court therefore upholds the
recommendation and so decides.
Division: MrMcGrath Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD90352 DECISION NO. AD3190
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BOXMORE PLASTICS LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation Number C.W. 300/1989 concerning a final written
warning and suspension without pay.
BACKGROUND:
2. The dispute concerns a production worker who reported for duty
on the 12 midnight to 8.00 a.m. shift on the 23rd October, 1989,
and went to work on a plastic injection moulding machine. At
approximately 12.45 a.m. he was approached by a supervisor who
took him off the machine and asked him to go to the canteen. At a
meeting in the shift superintendents office both the supervisor
and superintendent claimed that the worker was under the influence
of alcohol, unable to perform his duties properly and that he
would not be allowed to resume duty until such time as he was in a
fit condition. He was allowed to resume duty at 5.00 a.m. and
continued to the end of his shift. Under the Company's
disciplinary procedure the worker was given a final written
warning and a suspension of two weeks without pay. The Union
disputed the Company's action and the issue was referred to a
Rights Commissioner on the 7th February, 1990. On the 9th
February, 1990 the Rights Commissioner issued his recommendation
as follows:-
"I recommend that the Union accepts that discipline is
warranted and that the Company modifies the final written
warning to lapse after one year from the date of the incident
and reduce the suspension with pay to one week in both
cases."
The Union rejected the Rights Commissioner's recommendation and on
the 19th June, 1990 appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. A Court hearing was
held in Cavan on the 17th July, 1990.
UNION'S ARGUMENTS:
3. 1. When the worker reported for duty he took up his appointed
position on the number 11 machine which was making milk
containers. A new autopacking system machine had recently
been added to this machine. It is important to note that this
machine often gave trouble and the worker concerned was not
familiar with it. In fact it was the first time that he would
have worked on this machine since the new packing system was
installed. He was given no training nor was he previously
shown how to operate it. The machine jammed up continuously
and he had great difficulty keeping it cleared. Subsequent to
being removed from the machine at 12.45 a.m. it was switched
off altogether.
2. At the subsequent meeting in the superintendents office
the Union shift representative expressed surprise at the
Company's accusation that the worker concerned was under the
influence of alcohol. The shift representative had earlier
helped the worker remove some heavy bags and noticed no
evidence of alcohol consumption. The worker denies that he
had any alcohol consumed on this occasion and rejects the
supervisor and superintendents arbitrary assessment of his
condition. There is a major element of doubt existing in this
case and the Union is claiming that the loss of pay sustained
by the worker be restored and the warning completely removed
from the worker's record.
COMPANY'S ARGUMENTS:
4. 1. Under the disciplinary procedure (details supplied to the
Court) agreed between the Company and Union it is clearly
stated that drunkeness will render employees concerned liable
to dismissal. While it is true to state that the worker
concerned was not drunk nevertheless the spirit of the
agreement provides that an employee under the influence of
drink to the extent that it impairs his work performance is
liable to disciplinary action.
2. The Company has an obligation to the safety and welfare of
all employees. On the night of 23rd October, 1989 the worker
concerned was adjudged by two supervisors, both of whom knew
him over a long period, to be incapable of performing his job.
Further he was adjudged as being a threat to the safety of
fellow workers. Safety was the highest priority in the minds
of Management when disciplining the worker and in the
procedure they adopted in instructing him to discontinue
working.
3. Management argued at the Rights Commissioners hearing that
the worker should have been dismissed, yet they were lenient
in the form of disciplinary action taken. The Company was not
happy with the Rights Commissioner's dilution of its
disciplinary measure yet it accepted the recommendation
as a conciliatory measure. The Company must be left to judge
the degree of incapability of its workers. The repercussions
of allowing employees to work while incapacitated through
alcohol are untenable.
4. 4. The Company fears that if the disciplinary measure given
to the worker is watered down further then effectively it will
mean that the Company is giving tacit permission to employees
to work under the influence of alcohol. In this way the
Management is condoning a safety hazard to each individual and
his colleagues. Because the Company operates a three cycle
rotating shift system it is always a consideration to
supervisors that workers have been drinking prior to a 12
midnight shift. This practice must be controlled and the
Company believes it was fair in the case of the worker
concerned to seek to put such a control in place.
Workers who are incapacitated due to alcohol consumption
should be disciplined and the Company feels that the
disciplinary measure recommended by the Rights Commissioner is
fair and reasonable in the circumstances.
DECISION:
5. The Court having considered the submissions of the parties
oral and written finds no grounds to alter the recommendation of
the Rights Commissioner. The Court therefore upholds the
recommendation and so decides.
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Signed on behalf of the Labour Court
Tom McGrath
__13th__August,__1990. ___________________
T. O'D. / J. C. Deputy Chairman