Labour Court Database __________________________________________________________________________________ File Number: CD89833 Case Number: AD906 Section / Act: S13(9) Parties: DOLPHIN PACKAGING LIMITED - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Company against Rights Commissioners recommendation S.T. 388/89 concerning the dismissal of a worker.
Recommendation:
5. In coming to its decision on this appeal, the Court confined
itself to the specific issue in the dispute which led to the
dismissal of one individual, i.e. his whereabouts during the
latter hours of his shift on 29th September, 1989. It is
satisfied that there were no elements of a "set up" involved and
that to allow such an inference to remain would not assist the
final resolution of the dispute.
The parties to the appeal confronted the Court with versions of
what occurred on the night of 29th September which were the
opposite of one another. The Court therefore gave the most
careful consideration to the submission, the verbal evidence and
the answers to its questions during the course of the hearing.
This included evdence of an admission by another employee of his
absence from the place of work on the night in question.
In the light of all the evidence submitted the Court has come to
the conclusion that the Company were fully justified in
disciplining the individuals involved. The Court then considered
whether the penalty imposed was fair in the circumstances. The
Court was made aware that the other employee referred to above was
suspended for period of eight weeks and given a formal warning and
the employee whose case was before the Court was dismissed. It
was clear from the evidence that had the appellant acted in the
same manner as the other employee a similar period of suspension
and warning would have been imposed. The options for disciplinary
action by the Company were therefore limited. The Court noted the
satisfaction the Company expressed with the performance of the
employee prior to the night in question and also that the Company
considered that the bond of trust necessary between an employer
and employee was now destroyed. Taking all aspects of the appeal
into account the Court is of the view that whilst the Company
acted in a reasonable manner in imposing a penalty, dismissal was
too severe.
The Court therefore considers that it is not unreasonable to ask
the Company to re-employ the individual concerned on a
probationary basis for a period of 6 months commencing on 12th
February, 1990 and that the period from 3/10/89 to that date be
treated as a period of suspension.
If at the end of the probationary period the Company is satisfied
with his overall performance he should be re-instated on the same
basis as pertained prior to 3/10/1989.
The Court therefore upholds the Company's appeal against the
recommendation of the Rights Commissioner in that it does not
agree with the recommendation that the employee be re-instated
without loss of pay etc. and decides that the Company follow the
course of action outlined above.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD89833 APPEAL DECISION NO. AD690
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DOLPHIN PACKAGING LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioners
recommendation S.T. 388/89 concerning the dismissal of a worker.
BACKGROUND:
2. The Company is located at Greenore, Co. Louth and employs 46
personnel. The worker concerned who is a Union shop steward
commenced employment early in 1988 as a machine operator. He was
dismissed by the Company on the 3rd October, 1989, for an alleged
breach of Company regulations. Management claims that on a 4 to
12 p.m. shift on Friday 29th September, 1989 the worker concerned
was observed together with another employee in a local public
house at approximately 11 p.m. The Company claims that the
Managing Director, who was attending a function at another venue,
receive an anonymous telephone call that the workers were in a
local public house. A maintenance fitter also states that he saw
both workers in the pub. The Managing director returned to the
factory to observe workers clocking out at 12 midnight. He did
not see the worker concerned clocking out and all clock cards of
the 8 workers on the shift were clocked out at 12 p.m. The second
worker admitted being in the pub and he received a written
warning, and suspension without pay. The worker concerned was
dismissed. He denied that he was in the pub before 12 p.m. He
admitted that he was there after 12 p.m. when his shift had
finished. The Union claims that the Company used the issue to get
rid of the worker because of his Union activities. The dispute
was referred to a Rights Commissioner on the 10th October, 1989.
On the 27th October, 1989 the Rights Commissioner issued his
recommendation as follows:-
"The dismissal of an active shop steward is usually a
hazardous exercise for any employer for obvious reasons.
Only the highest of standards will suffice to achieve this
end in terms of a proper investigation and reliable witnesses
with proper corroboration. In this case it seems to me that
this criteria has not been met fully if the Company had
reason to believe that the visit to the pub was a feature of
late night working then it would have been easy to achieve
entrapment. However acting upon a anonymous "tip off" the
management acted with undue haste to make the kill. It seems
to me that this strategy came unstuck for that reason. If
the Company thought it was a once only chance to catch the
claimant then it was justified in taking the action it took.
It is deeply questionable how an anonymous caller could have
synchronised her call with the fact that the maintenance
fitter happened to observe the claimant in the bar. It has
all the elements of a set up to me and I find that since
there is a direct conflict of evidence on the time at which
the claimant was at the bar I must give him the benefit of
the doubt. In doing so I am following well established
precedent of the E.A.T. in Determination No. 62/87 and
774/86. I therefore recommend his re-instatement without
loss of pay nett of social welfare payment which may have
been received for the period out of work."
The Company rejected the recommendation and on the 8th November,
1989 appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing was held in
Dundalk on the 12th December, 1989.
UNION'S ARGUMENTS:
3. 1. The Union totally rejects the Company's allegation. The
worker concerned clocked out at 12 midnight on the 29th
September, 1989. His clock card verifies this fact. He then
walked back through the plant to the rear door where his car
was parked. This was common practice for employees on this
shift including the worker concerned, and was known to
Management. This would account for the Managing Director's
failing to see the worker at the clock, given that he was
standing at the front door of the canteen peering through a
dirty window. The other worker who was subsequently
suspended described exactly the same clocking out procedure.
His statement was accepted by the Company.
2. The maintenance supervisor, who claims he saw the worker
concerned in the pub, had a personal conflict with him over a
previous incident and Management were aware of this fact. The
Managing Director stated that he saw the worker's car at
another pub. He noted the number. This number was never a
registered car of the worker concerned. It is reasonable to
assume that the Managing Director who made an error of
judgement about the worker's car also erred in relation to
seeing the worker concerned clock out.
3. 3. The worker concerned does not deny being in the bar but it
was after his shift had finished and it was after 12 p.m.
This is custom and practice for many workers after this shift
has finished. The Union contends that the maintenance fitter
mistakenly reported the worker concerned to the Company. The
Union understands that the fitter was confronted by Management
for this information. Given the man's feelings concerning the
worker the Union feels that in fairness he could not be
counted a reliable witness. Six fellow employees of the
worker concerned have on an individual basis stated to the
Company that the worker was on site for the duration of the
shift, and that they saw him clock out at midnight. The Union
believes that these statements from fellow workers should be
acceptable to Management.
4. The investigation by the Rights Commissioner served to
strengthen the Union's view that the Company was adamant in
its efforts to get rid of an active and popular shop steward.
The maintenance fitter when asked about his conflict with the
worker concerned, mysteriously had no conflict with him. Yet
everyone in the factory knew otherwise, and at a previous
Union/Company meeting the fitter displayed animosity towards
the worker concerned. In the Company's letter of dismissal to
the worker it was mentioned that he failed to clock out. This
was never mentioned at any previous meetings. No evidence was
produced by the Company about this issue, as the worker is
clocked out at 12 midnight. The Managing Director also gave
conflicting evidence to the Rights Commissioner. At the
Union/Company meeting of 3rd November, 1989 he stated that he
was standing at the canteen door, looking through a window.
At the subsequent investigation by the Rights Commissioner he
stated he was in the canteen definitely at 12 midnight, and
not approximately. He also erred about the worker's car
registration number.
5. The anonymous telephone call is an aspect of this case
which makes the Company's endeavours all the more sinister.
It is inconceivable to the Union how a member of Management
would even think of going around the countryside late at
night, taking numbers of cars, and peering through windows.
This type of action belies all rational and logic of any fair
minded person, unless the caller was known to the receiver of
the so called "tip off."
6. The worker concerned has been dismissed from the Company
since 3rd October, 1989 to the present day. Apart from the
obvious slur Management's action has put on his character, the
financial hardship on him and his family is tremendous. This
is compounded by the ill-health of a family member. The
factory is particularly busy at this time and workers are on
high earnings. The worker concerned has been excluded from
these opportunities, and is receiving #95.00 per week in
social welfare. His nett pay while working was #150.00 p.w.
He is now struggling to support a wife and family on welfare.
The Union requests the Court to restore the worker's
livelihood by upholding the Rights Commissioner's
recommendation. There is a clear conflict of evidence in this
case. The Union however has endeavoured to be consistent by
presenting its case honestly.
COMPANY'S ARGUMENTS:
4. 1. At a meeting with the Union on the 3rd October, 1989
concerning the events of Friday 29th September, Management
made the following options available.
(a) a full admission by each employee of their presence in
the pub during working hours which would be dealt with
by the Company in a more lenient manner,
(b) suspension without pay pending a referral of the issues
to a third party,
(c) the Company would proceed with its investigation.
One of the employees decided to avail of option (b). The
worker concerned still denied all charges and wanted his case
heard by the Company. He was advised by Management that the
charges could, pending completion of the investigation, result
in dismissal.
2. The maintenance fitter, when called to the meeting, stated
that he saw the worker concerned in the pub at approximately
11.00 p.m. He insisted that he was not mistaken about the
worker's identity or the time. He stated that the personal
grudge element did not enter into the issue and he was only
reporting the facts. Out of the six employees involved, four
specifically stated that they had not seen the worker
concerned at the clock. One "thought" he saw the worker clock
out at 12.00 Only one of those interviewed stated that he
"thought" he had seen the worker concerned around 11 p.m. The
Company was not convinced that the case against the worker was
unfounded and accordingly he was dismissed. It is obvious
from the text of his recommendation that the Rights
Commissioner allowed himself to be unduly influenced by the
fact that the worker was a shop steward within the Company.
In fact the Rights Commissioner stated that "only the highest
of standards will suffice" in dismissing a shop steward "in
terms of a proper investigation and reliable witnesses with
proper corroboration." To draw a distinction in this way
between the standards to be applied in dismissing a shop
steward and dismissing any employee is completely unwarranted.
The Company wishes to point out to the Court that in
investigating the incidents of the 29th the Management sought
to treat each employee irrespective of their position, with
equity and fairness. The Company would further submit that at
no point did Union representatives suggest that the Management
had not conducted a proper investigation in every way and the
worker was fully acquainted with the charges levied against
him and any witnesses involved, insofar as they were known to
the Company.
4. 3. The Rights Commissioner suggested that if the Company had
reason to believe that the visit to the pub had been a regular
occurrence then it would have been easy to achieve entrapment.
It was further stated that "management acted with undue haste
to make the kill." The Company takes absolute exception that
it sought to "make the kill." The Company was faced with a
very serious breach of discipline by the worker and a
colleague in view of the events of 29th September and its
subsequent investigation. The Company was obligated having
had regard to the circumstances to take appropriate punitive
action in full accord with its Disciplinary Procedures. The
Company exercised its discretion in the case of the other
worker by imposing a sanction which was less than dismissal in
view of his admitted presence in the pub during working hours
on the 29th September. Had such an admission been made by the
worker concerned he would have been treated in the same manner
but his continued denial, which was incompatible with the
evidence available to Management, left the Company with no
option but to dismiss him. It must further be pointed out
that at no stage did Management suggest that "the visit to the
pub" was a feature of late night working. Whilst this may
have been a remote possibility, the Company was faced
specifically with the events which occurred on one night
alone. Accordingly, the Company would submit that the Rights
Commissioner allowed himself to be influenced by a supposition
which was in total contradiction of the facts.
4. The Rights Commissioner further called into question "how
an anonymous caller could have synchronised her call with the
fact that the maintenance fitter happened to observe the
claimant in the bar" and further stated that the case had all
the elements of a set up. The Company finds it
incomprehensible how the Rights Commissioner arrived at the
conclusion that there had been a "set up." The fitter had
gone straight to the pub from home at 9.15 p.m. The female
caller to the Managing Director whilst stating that the worker
concerned was in the pub also stated that the worker was in
another bar. The maintenance fitter had not visited the other
bar on that night and went directly home. In making his
statement it would appear that the Rights Commissioner ignored
the eventual admission by the other worker to his presence in
the pub as alleged which confirmed the accuracy of the
sightings by the maintenance fitter and the anonymous caller.
The Rights Commissioner further stated that there was a direct
conflict of evidence on the time at which the claimant was at
the bar and accordingly gave him the benefit of the doubt.
Once again the facts are at variance with this assertion. The
maintenance fitter maintained that he saw the worker concerned
in the pub at 11.00 p.m. and that he was there until at least
11.10 p.m. when the fitter left. The worker concerned on the
other hand admitted that he was in the pub but only after the
completion of his shift at 12.00 midnight.
4. 5. Firstly the Company would point out that there was no
conflict of evidence in respect of the other worker's presence
in the pub and accordingly there is no reason to suggest
otherwise in the case of the worker concerned. The Company
had two witnesses who stated that he was in the pub, both
prior to 11.40 p.m. with the maintenance fitter having sighted
him at 11.00 p.m. On the other hand, during the course of its
investigations of the six employees interviewed from the late
shift on the 29th September only one employee "thought" that
he had seen the worker concerned "around" 11.00 p.m.
Similarly only one employee "thought" he saw the worker at the
clock at 12.00 midnight. Even in the extreme and without
prejudice to the foregoing if one were to accept that the
worker was in the plant at 12.00 to clock out it is reasonable
to suggest, having regard to the facts, that he entered the
pub at 11.00, having walked the 145 paces from the plant and
returned after 11.10 p.m. having drunk at least one pint of
guinness. This would still be entirely consistent with the
comments made by the other employees.
6. The Company further considers that its appeal is justified
having regard to the statement by the Rights Commissioner that
"if the Company thought it was a once only chance to catch the
claimant then it was justified in taking the action it took."
The facts of this case speak for themselves and having regard
to the above points of appeal the Company was indeed justified
by the action it took. Again it must be pointed out that
Management did not seek to "catch the claimant" but rather to
investigate what it considered to be extremely serious
breaches of discipline and Company rules, which specifically
in relation to his unwarranted presence in the public house,
the Company regarded as a dismissable offence in its own
right. This was further compounded by the worker's failure to
clock out, leaving work without prior authorisation and by his
unwarranted refusal to co-operate with the Company's
investigation and specifically his refusal to accept
suspension with, or without pay, pending further investigation
by the Company.
4. 7. For all of the foregoing reasons, the Company requests the
Court to uphold its appeal and in doing so to uphold the
dismissal of the worker concerned. The Company has submitted
that the Rights Commissioner erred by allowing himself to be
influenced by assumptions which were without foundation having
regard to the facts. Furthermore where he had regard to
particular facts, the Rights Commissioner fell victim to
conjecture in assigning importance to them.
DECISION:
5. In coming to its decision on this appeal, the Court confined
itself to the specific issue in the dispute which led to the
dismissal of one individual, i.e. his whereabouts during the
latter hours of his shift on 29th September, 1989. It is
satisfied that there were no elements of a "set up" involved and
that to allow such an inference to remain would not assist the
final resolution of the dispute.
The parties to the appeal confronted the Court with versions of
what occurred on the night of 29th September which were the
opposite of one another. The Court therefore gave the most
careful consideration to the submission, the verbal evidence and
the answers to its questions during the course of the hearing.
This included evdence of an admission by another employee of his
absence from the place of work on the night in question.
In the light of all the evidence submitted the Court has come to
the conclusion that the Company were fully justified in
disciplining the individuals involved. The Court then considered
whether the penalty imposed was fair in the circumstances. The
Court was made aware that the other employee referred to above was
suspended for period of eight weeks and given a formal warning and
the employee whose case was before the Court was dismissed. It
was clear from the evidence that had the appellant acted in the
same manner as the other employee a similar period of suspension
and warning would have been imposed. The options for disciplinary
action by the Company were therefore limited. The Court noted the
satisfaction the Company expressed with the performance of the
employee prior to the night in question and also that the Company
considered that the bond of trust necessary between an employer
and employee was now destroyed. Taking all aspects of the appeal
into account the Court is of the view that whilst the Company
acted in a reasonable manner in imposing a penalty, dismissal was
too severe.
The Court therefore considers that it is not unreasonable to ask
the Company to re-employ the individual concerned on a
probationary basis for a period of 6 months commencing on 12th
February, 1990 and that the period from 3/10/89 to that date be
treated as a period of suspension.
If at the end of the probationary period the Company is satisfied
with his overall performance he should be re-instated on the same
basis as pertained prior to 3/10/1989.
The Court therefore upholds the Company's appeal against the
recommendation of the Rights Commissioner in that it does not
agree with the recommendation that the employee be re-instated
without loss of pay etc. and decides that the Company follow the
course of action outlined above.
~
Signed on behalf of the Labour Court
Evelyn Owens
__________________________
23rd January, 1990. Deputy Chairman.
T.O'D/J.C.