Labour Court Database __________________________________________________________________________________ File Number: CD90454 Case Number: AD9052 Section / Act: S13(9) Parties: PACKARD ELECTRIC IRELAND LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION;AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION |
Appeal by the Company against Rights Commissioners Recommendation ST 185/90 concerning an interpretation of the Company/Union Agreement in relation to the dismissal of a worker.
Recommendation:
7. The Company/Union Agreement sets out two levels of
conduct/performance offences - "Technical" offences as detailed in
clause 11 and "Serious Misconduct" as set out in clause 12. The
agreement also sets out two distinct procedures within the
disciplinary code - one for dealing with technical offences and
one for dealing with cases of "Serious Misconduct."
The fundamental difference between the two procedures lies in the
number of stages they contain through which an offender must
progress before being liable to suspension or dismissal. These
reflect the relative seriousness of offences.
The Court has considered the 1st option available to an employee
facing dismissal as provided for in clause 12 of the Company/Union
Agreement. The application of this option is the kernel of the
dispute, the Union claiming that it applies to all offences both
technical and serious misconduct with the exception of five
"Serious Misconduct" offences listed in clause 12 and the Company
maintaining that it applies only to cases of "Serious Misconduct"
other than the five listed ones.
The option at issue provides a three months suspension as an
alternative to dismissal. If, as the Union argues, this should
apply in the case of "Technical" offences, it would mean the
insertion of a second suspension stage into the procedures for
this level of offence and increase the number of formal stages to
six. Having regard to the recurrence level of "Technical"
offences required to incur a suspension in the first instance, the
procedures outlined in clause 11 seem fair and reasonable and do
not merit the insertion of a second suspension stage.
On the other hand, the provision of a substantial suspension as an
option other than mandatory dismissal for just one offence of
specified forms of "Serious Misconduct" seems a reasonable method
of allaying concern that mandatory dismissals could become
commonplace.
In reviewing the agreement, the Court has had regard to the format
used in setting out the offences and related procedures and is
satisfied that they operate independently when the offence relates
to one grouping only. Accordingly the Court considers the
"option" at issue can only be applied in the context of clause 12.
Thus the Court considers that the Company's appeal is well-founded
and therefore upholds it.
The Court so decides.
Division: CHAIRMAN Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD90454 APPEAL DECISION NO. AD5290
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: PACKARD ELECTRIC IRELAND LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
AMALGAMATED TRANSPORT AND GENERAL WORKERS UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioners
Recommendation ST 185/90 concerning an interpretation of the
Company/Union Agreement in relation to the dismissal of a worker.
BACKGROUND:
2. A Company/Union Agreement exists in the Company which includes
Clause 11 - Disciplinary Procedure and Clause 12, procedures to be
used in dealing with cases of serious misconduct (see Appendix A).
The Company/Union Agreement also contains an industrial peace
clause and in recognition of this the following stage was inserted
into the Agreement at Clause 12:-
"In recognition of the employees' commitment to the level of
industrial peace required to guarantee reliability of supply
to our customers, the company is prepared to insert for the
duration of this agreement an additional stage in the
disciplinary procedure prior to the dismissal stage for
offences other than:
(1) Deliberate violation of a safety or quality rule or
engaging in a dangerous practice.
(2) Failure or refusal to perform work assigned.
(3) Drinking or possession of alcoholic beverages, taking or
possession of unprescribed drugs while on company
property reporting for work having taken an intoxicant or
unprescribed drug, and in the opinion of the supervisor
being unfit to carry out normal duties.
(4) Dishonesty in absence from work.
(5) Distribution of any unauthorised literature or goods on
the premises.
The employee shall have the option under this stage to:
(a) a special suspension of three months duration; or
(b) dismissal and referral to the Employment Appeals Tribunal
plus an ex gratia payment of four weeks' pay; or
(c) dismissal and referral to the Labour Court under Section
20 of the Industrial Relations Act, 1969."
(See also Appendix A).
3. In March, 1990 a worker was dismissed due to his bad
time-keeping and attendance record. Prior to this he had received
counselling, verbal warning, written warning, final written
warning and suspension in line with the disciplinary procedure of
the Company/Union Agreement. On 7th February and 12th February,
1990 local level meetings were held, arising out of which it was
decided that due to the worker's domestic situation, the Company
would not proceed with the dismissal at that stage, on the basis
that any further late or absence etc. within the next twelve
months would result in the worker's dismissal. This was confirmed
in writing to the worker and the Union on 13th February, 1990. On
2nd March, 1990 the worker was late for work and was subsequently
dismissed by the Company. Following his dismissal the Union
claimed that the 'options clause' (as set out above) should be
applied and that it wished to avail of the three months suspension
option. (The stages leading up to the worker's dismissal are not
in dispute). The Union's position is that the disciplinary
procedures must be taken as one entity and that all offences
subject to discipline, other than the five exceptions listed in
the 'options clause' are covered by it. The Union also claims
that in at least one previous disciplinary case a three month
suspension was agreed. This position was rejected by the Company
whose interpretation of the agreement is that a three months
suspension or one of the other options available only applies to
serious misconduct offences (excluding the five listed offences).
The matter was subsequently referred to the Rights Commissioner's
Service for investigation and recommendation. A Rights
Commissioner investigated the dispute on 28th May, 1990 and issued
the following recommendation-
"The claimant's record warrants dismissal in my view,
particularly as he was afforded every opportunity to improve
and the dismissal procedure was in conformity with the
standards laid down by the E.A.T. consistently.
However I have been asked to decide whether he had the option
of a three months suspension under agreement instead of
dismissal.
The parties agreed an additional stage in the Disciplinary
Procedure "in recognition of the employees' commitment to the
level of industrial peace required to guarantee reliability of
supply to our customers". This was related to offences which
excluded five particular offences of a very serious technical
nature. Since the offence for which the claimant was
dismissed is not included in the five specified offences I
have to assume that it is included in the range of offences
which are scheduled elsewhere. In this connection it seems to
me that the seven technical offences are covered, as it states
in the Amended Clause Eleven that any combination of these (in
this case "time keeping" and "persistent absence") may be
treated as "serious misconduct" and dealt with by reference to
clause 12 hereof".
Finally the Union Group appears to have precedent on its side
in relation to the McCallion case in 1988 when the three month
rule was used in similar circumstances.
In all these circumstances I recommend that the claimant is
covered by the three month clause 12(a) and the last paragraph
of clause 11."
4. On 2nd August, 1990 the Company appealed the recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on 24th September, 1990.
UNIONS' ARGUMENTS:
5. 1. In at least one previous disciplinary case involving
lates/absence, a three month suspension was agreed by the
Company. Although that worker left the Company during the
period of suspension due to domestic reasons, this does not
detract from the Company's acceptance that the 'options
clause' was relevant. The disciplinary procedures must be
taken as one entity, the key words in the clause being-
"...the company is prepared to insert for the duration of this
agreement an additional stage in the disciplinary procedure
prior to the dismissal stage for offences other than..."
By any reading of the Agreement all offences subject to
discipline other than the five listed are covered by the
options clause. This view was upheld by the Rights
Commissioner (details supplied to the Court).
2. In its submission to the Rights Commissioner, the Company
stated that the additional clause is only an option where a
worker is being dismissed under the serious misconduct
procedure subject to offences other than listed 1 to 5. The
Company appears to be stating that the serious misconduct
clause should be treated in isolation from the Disciplinary
Procedures and that a worker can avail of a three month
suspension if for example s/he is involved in "violation of
employee rights by threats or intimidation", but that a worker
can be dismissed for technical offences without the right to a
three month option. This position cannot be sustained.
Management's position is a serious and fundamental
misinterpretation of the Company/Union Agreement. The
'options clause' was designed as an important 'quid-pro-quo'
for acceptance of the industrial peace clause. The Rights
Commissioner's recommendation should be endorsed and the
worker should receive compensation for his loss of earnings
from the end of the three month suspension (4th June, 1990),
to date.
COMPANY'S ARGUMENTS:
6. 1. During the discussions held in 1987 on a new Company/Union
Agreement, a disciplinary procedure was negotiated and agreed
which related to procedures for dealing with (a) technical
offences, and (b) serious misconduct offences. In recognition
of the workers' commitment to an industrial peace clause the
Company committed to insert an additional stage into the
disciplinary procedure relating to certain serious misconduct
offences prior to dismissal, which gave a worker the option of
a special suspension of 3 months duration, etc. (details
supplied to the Court). As the worker concerned was not
dismissed for a serious misconduct offence these options do
not apply. The worker was dismissed under the disciplinary
procedure relating to technical offences for his time keeping
and attendance at work.
2. At no stage during the meetings held in February arising
out of which it was decided to give the worker one final
chance did the Union raise the question of the worker being
given the option of availing of the additional stage of the
disciplinary procedure as is applied to serious misconduct
offences. The Union has claimed that in two previous cases
which were not serious misconduct offences the workers
concerned had been given this option. In these cases, due to
the extraordinary personal circumstances of the workers
concerned and without any precedent being set, it was agreed
to give them a final opportunity to sort out their personal
problems. It was agreed that this would not in any way be a
precedent for any further dismissal cases. The procedure
relating to discipline under technical offences is referred to
under section 11 'Disciplinary Procedure' and this was the
procedure used for disciplinary action relating to the worker
concerned. The additional stage inserted into the
disciplinary procedure where a worker is given 3 options only
relates to serious misconduct offences and is referred to
under Section 12 'Serious Misconduct' (details supplied to the
Court). The dismissal was in accordance with the agreed
disciplinary procedure.
DECISION:
7. The Company/Union Agreement sets out two levels of
conduct/performance offences - "Technical" offences as detailed in
clause 11 and "Serious Misconduct" as set out in clause 12. The
agreement also sets out two distinct procedures within the
disciplinary code - one for dealing with technical offences and
one for dealing with cases of "Serious Misconduct."
The fundamental difference between the two procedures lies in the
number of stages they contain through which an offender must
progress before being liable to suspension or dismissal. These
reflect the relative seriousness of offences.
The Court has considered the 1st option available to an employee
facing dismissal as provided for in clause 12 of the Company/Union
Agreement. The application of this option is the kernel of the
dispute, the Union claiming that it applies to all offences both
technical and serious misconduct with the exception of five
"Serious Misconduct" offences listed in clause 12 and the Company
maintaining that it applies only to cases of "Serious Misconduct"
other than the five listed ones.
The option at issue provides a three months suspension as an
alternative to dismissal. If, as the Union argues, this should
apply in the case of "Technical" offences, it would mean the
insertion of a second suspension stage into the procedures for
this level of offence and increase the number of formal stages to
six. Having regard to the recurrence level of "Technical"
offences required to incur a suspension in the first instance, the
procedures outlined in clause 11 seem fair and reasonable and do
not merit the insertion of a second suspension stage.
On the other hand, the provision of a substantial suspension as an
option other than mandatory dismissal for just one offence of
specified forms of "Serious Misconduct" seems a reasonable method
of allaying concern that mandatory dismissals could become
commonplace.
In reviewing the agreement, the Court has had regard to the format
used in setting out the offences and related procedures and is
satisfied that they operate independently when the offence relates
to one grouping only. Accordingly the Court considers the
"option" at issue can only be applied in the context of clause 12.
Thus the Court considers that the Company's appeal is well-founded
and therefore upholds it.
The Court so decides.
~
Signed on behalf of the Labour Court,
Kevin Heffernan
__15th__November,___1990. ___________________
U. M. / M. F. Chairman
APPENDIX A
EXTRACT FROM COMPANY/UNION AGREEMENT
11. DISCIPLINARY PROCEDURE:
(AMENDED)
The Company expects good standards of conduct and performance
from all employees and is interested in ensuring that
everyone get a fair opportunity to rectify any breach of
conduct or performance, plant or safety rules.
Where it is necessary to take disciplinary action against an
employee the following procedure will apply:
Stage 1 - Verbal Warning.
The supervisor will issue a verbal warning to the employee
concerning the breach that has occurred, what must be done to
correct it and the consequences of the problem continuing
will be pointed out. This warning will be noted on the
employees file, and a copy given to the employee. If there
is no further breach of the agreement within four working
months from the date of issue the warning is then erased.
Stage 2 - Written Warning.
Where the employee does not improve to the required standard
within the time allowed by the company, the supervisor will
issue a written warning to the employee.
The warning will be noted on the employees file and a copy
given to the employee and the employee's shop steward. If
there is not further breach of the agreement within eight
working months from the date of the issue the warning is then
erased.
Stage 3 - Final Written Warning.
If despite Stages 1 and 2, the employee's conduct and/or
performance has still not improved to a level acceptable to
the company, he/she will receive a final written warning and
warned that if there is not a satisfactory improvement in
conduct and/or performance he/she will be suspended. Copies
of the final written warning will be issued to the employee
concerned, shop steward and the Secretary/Chairman of the
Shop Stewards' Committee. If there is not a further breach
of the agreement within twelve working months, from the date
of the issue, the warning is then erased.
Stage 4 - Suspension Before Dismissal.
If despite Stages 1, 2 and 3, the employee's conduct and/or
performance has still not improved to a level acceptable to
the company, he/she will be suspended without pay for a
period of time decided on by the company and warned that if
there is not a satisfactory improvement in conduct and/or
performance, he/she will be liable to dismissal.
A member of the Personnel Department will be present at this
meeting. Copies of the suspension notice will be issued to
the employee concerned, shop steward and the Branch Secretary
of the trade union.
If there is not further breach of the agreement within
fifteen working months from the date of issue the warning is
then erased.
Stage 5 - Dismissal.
If despite warnings given/action taken in accordance with
Stages 1,2,3 and 4, an employee's conduct and performance is
still not acceptable to the company he/she will be liable to
dismissal.
Such dismissal shall only take place after completion of an
investigation by the company during which time the employee
concerned will be suspended with pay for a period of time not
exceeding three working days.
At any stage of the procedure from Stage 1, the employee may
request to have his shop steward present. The company
reserves the right to issue a warning or suspension depending
on the seriousness of the offence without recourse to the
first two stages of the disciplinary procedure.
Counselling.
Prior to any disciplinary action being taken at Stage 1 of
the disciplinary procedure the employee shall be counselled
by his/her supervisor and advised of the deficiency and what
must be done to correct the situation. Only when the problem
persists shall Stage 1 of the disciplinary procedure be
implemented.
The shop steward shall at the employees request be allowed to
attend the session as an observer to note the content of the
counselling.
Right of Appeal.
An employee has the right to appeal a decision in the case of
disciplinary action and if so the appeal shall follow the
normal grievance and disputes procedure. Appeals against
dismissal shall be in accordance with the Unfair Dismissals
Act, 1977.
The disciplinary procedure shall have one stream of actions
except in cases cited in 'exception clause' hereunder.
Exception Clause.
A single stream shall operate, save in cases where an
employee has progressed no further than stage one of the
disciplinary procedure and commits an offence which is dealt
with under the serious misconduct provisions other than
dismissal set out in Clause 12 hereof, such an employee will
not be liable to dismissal action other than misconduct of a
serious nature unless he/she has accumulated at least two
further warnings for technical offences (e.g. lates and
absence, late back from breaks, etc.) while the disciplinary
action is still in force.
Technical offences - such as:
- lack of co-operation
- breach of any regulations in this agreement or further
approved amendments to it
- unacceptable quality or quantity of work
- incompetence or lack of aptitude
- damage to equipment or buildings
- bad timekeeping
- unauthorised absence, persistent absence, absence of a
duration and/or nature as would indicate the absence of
capacity to fulfil the contract of employment.
Any combination of the above or similar misdemeanours may be
treated as serious misconduct and dealt with by reference to
Clause 12 hereof.
12. SERIOUS MISCONDUCT:
Notwithstanding the above disciplinary procedures certain
conduct or action may be such as to justify immediate
suspensions or terminations of employment.
A supervisor may send home an employee, for serious
misconduct. In such cases, the employee will be sent off the
plant premises until his/her case can be dealt with but any
such action will be without prejudice to the ultimate
decision of the company. Such cases will be considered by
management within forty-eight hours and a final decision will
be issued within five days. The employee will remain
suspended until a final decision is issued. The suspension
will be with pay.
In the case of an employee refusing to work as directed the
employee will be interviewed by management with the shop
steward present and warned that continual refusal to work as
directed could lead to dismissal. If the employee still
refuses then the employee will be suspended (without pay)
until the following day to re-consider his action. On the
following day if the employee still refuses then a dismissal
meeting will take place. Any employee who has been suspended
and who is again in breach of serious misconduct will be
dismissed.
Examples of serious misconduct are - but are not limited to -
the following:
(1) Deliberate violation of a safety or quality rule for
engaging in a dangerous practice.
(2) Failure or refusal to perform work assigned.
(3) Drinking or possession of alcoholic beverages, taking
or possession of unprescribed drugs while on company
property; reporting for work having taken an
intoxicant or unprescribed drug, and in the opinion of
the supervisor being unfit to carry out normal duties.
(4) Fighting, provoking or instigating a fight on company
premises.
(5) Violation of employee rights by threats or
intimidation.
(6) Immoral, indecent or abusive conduct to colleagues or
supervisor.
(7) Dishonesty in absence from work.
(8) Falsifying any company records, including personnel,
timekeeping, production, quality or other records as
may be produced or rendered by the employee.
(9) Punching the time card or attendance registration card
of another employee.
(10) Theft, destruction or defacing of company or employee's
property or the property of any third party.
(11) Distribution of any unauthorised literature or goods on
the premises (including party political literature of
any description).
(12) Deliberate damage to equipment or buildings.
(13) Unauthorised distribution/display/posting of any
notice/literature/advertisement, or any other
publication or goods on the company's premises.
Procedures for obtaining authorisation for
distribution/display/posting of such material include
written permission from the Personnel Manager or his
authorised deputy. This clause does not apply to the
normal communications regarding company/union matters
duly signed by either or both of the officials of the
unions who are parties to the agreements.
Where a summary action is taken against an employee, it shall
be deemed to be a suspension until the Head of Personnel or
his designee, acting on his behalf gives a decision on the
case.
In the event of an employee being suspended he may present
his case for re-instatement by use of the grievance and
disputes procedure. No decision to dismiss an employee will
be taken until such time as any investigation of the case has
been completed and the employee concerned has been afforded
the opportunity to respond to any changes involved in the
case and the company has considered this response.
In recognition of the employees' commitment to the level of
industrial peace required to guarantee reliability of supply
to our customers, the company is prepared to insert for the
duration of this agreement an additional stage in the
disciplinary procedure prior to the dismissal stage for
offences other than:
(1) Deliberate violation of a safety or quality rule or
engaging in a dangerous practice.
(2) Failure or refusal to perform work assigned.
(3) Drinking or possession of alcoholic beverages, taking or
possession of unprescribed drugs while on company
property reporting for work having taken an intoxicant
or unprescribed drug, and in the opinion of the
supervisor being unfit to carry out normal duties.
(4) Dishonesty in absence from work.
(5) Distribution of any unauthorised literature or goods on
the premises.
The employee shall have the option under this stage to:
(a) a special suspension of three months duration; or
(b) dismissal and referral to the Employment Appeals
Tribunal plus an ex-gratia payment of four week's pay;
or
(c) dismissal and referral to the Labour Court under Section
20 of the Industrial Relations Act, 1969.
NOTE: The employee can avail of the special suspension once
only. If the employee subsequently becomes liable for
dismissal, the dismissal would be implemented and the
employee would have recourse to the Employment Appeals
Tribunal only.