Labour Court Database __________________________________________________________________________________ File Number: CD91112 Case Number: AD9135 Section / Act: S13(9) Parties: FINSA FOREST PRODUCTS LIMITED - and - NATIONAL ENGINEERING AND ELECTRICAL TRADE UNION |
Appeal by the Company of Rights Commissioner's recommendation No. ST347/90 concerning disciplinary action taken against a worker.
Recommendation:
I have given this case an inordinate amount of time in order
to assist the parties. The claimant clearly erred but in
view of the Company's benign view of actual assault in
previous cases, dismissal was not a realistic option in this
case. The claimant has a considerable amount of work to do
to rehabilitate himself with the Company. I think that
direct Company related trade union activities will not assist
him in that process and I recommend that he agrees of his own
volition to desist from standing for election as Shop Steward
up to the 1/1/1994. He should feel free to participate in
all other trade union activities outside the plant.
I further recommend that the period of suspension be reduced
by two weeks. I also recommend that the claimant is returned
to shift working in accordance with his contract and that he
receives a final written warning effective from 1/12/1990 and
effective for the stipulated period in the Agreement.
4. The Company rejected the Rights Commissioner's recommendation
and appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
20th March, 1991, in Limerick.
COMPANY'S ARGUMENTS:
5. 1. The Company's appeal is based on the grounds that the
penalty provided for in the recommendation is insufficient
and that the findings upon which the recommendation was
based are seriously flawed and do not reflect fairly the
gravity of the matter. In particular, the Company rejects
the finding that the Company was compromised by the events
which took place between two employees on a previous
occasion. These allegations are unsubstantiated and vary
substantially from the facts of the matter.
2. The Rights Commissioner says that the company stopped
short of the ultimate sanction (dismissal) for obvious
reasons but later says that the penalty of removing an
employee from shift working is often accepted by Unions in
cases where dismissals have been avoided. The Company's
decision not to dismiss the worker concerned, although
dismissal was an appropriate penalty, is a reflection of the
company's leniency and reasonableness. Therefore, the
Company's decision to remove the worker from shift is
reasonable and should stand. The worker has a lengthy
disciplinary record which leads the Company to believe that
he is unsuitable to work under his own initiative as he would
do in a shift situation. In fact, he had previously been
warned that if his conduct and behaviour did not improve he
risked being taken off shift work.
3. The Rights Commissioner indicates that the Company was
unreasonable in differentiating between threats of physical
abuse being made to a member of management and threats being
made to a fellow employee. In the Company's view, the
distinction is quite clear. Throughout the course of the
Company's investigation the worker refused to acknowledge the
truth, despite the fact that employees who had witnessed the
events acknowledged the truth of the Supervisor's statement.
4. In dealing with this matter the Company took into
account only the facts of the incident involved and did not
allow its perception be coloured by extraneous matters. The
actions taken by the Company were fair and reasonable in the
circumstances and the penalty issued was lenient in view of
the very serious events investigated. The Company gave
careful consideration to the penalty it decided to issue.
Central to the penalty is the aspiration that the workers
conduct and behaviour will improve.
5. The Company strives to cultivate good employee relations
at all levels. The incident here concerned is highly unusual
and without parallel. The suggestions contained in the
findings section of the Rights Commissioner's recommendation
seem to suggest that incidents such as this are somewhat more
frequent occurrences than the record shows.
6. It has been held in a significant number of Employment
Appeal Tribunal (E.A.T.) cases that incidents such as this
could be deemed to be a gross misconduct and could warrant
dismissal. Furthermore, the E.A.T. has held that threats
made to management are different from threats made to fellow
employees on the basis that the former challenge the
authority and role of management.
7. During the course of the Rights Commissioner's hearing
the Union alleged that the Company did not carry out a full
investigation of the matter. This is totally rejected by the
Company. There was a most complete investigation carried
out. That investigation involved the provision of the full
rights of natural justice and involved full recourse to
appeal. Also the Company maintains that the penalty imposed
was based upon the incident involved and not upon the fact
that the worker concerned was a Shop Steward.
8. The Company requests the Court to endorse the Company's
arguments in this appeal and to recommend that the original
sanctions taken by the Company be implemented.
Division: Ms Owens Mr Collins Mr Rorke
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