Labour Court Database __________________________________________________________________________________ File Number: CD9154 Case Number: LCR13242 Section / Act: S20(2) Parties: KILKENNY TEXTILE MILLS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning the issue and duration of a written warning.
Recommendation:
5. The Court has considered the issue before it which was
specifically "the question of a written warning and its duration
in this case."
The Court, having considered the circumstances of the case which
led to the acceptance of settlement terms of the dispute signed on
21st December, 1990, is of the opinion
(a) that Clause 5 of the Company/Union agreement is of
doubtful relevance to the circumstances of this case
insofar as whatever rights arise therefrom are
collective in their nature and give no individual right
of veto as argued by the Union.
(b) the original objection to the overtime in question was
not a principled objection but rather a question of the
personal convenience of the employee concerned.
For these reasons the Court takes the view that the terms of the
written warning should stand, but that notwithstanding the
relevant terms of the Company/Union agreement, recommends they
should end in this case after a period of 6 months from the date
of issue.
Division: Mr O'Connell Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD9154 RECOMMENDATION NO. LCR13242
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: KILKENNY TEXTILE MILLS
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning the issue and duration of a written
warning.
BACKGROUND:
2. The worker concerned was dismissed by the Company on the 14th
December, 1990 for refusing on a number of occasions to work
overtime in breach of clause 10 of the Company/Union agreement.
The Union disputed the dismissal on the grounds that the worker
was seeking his rights under clause 5 of the agreement and that
the Company's failure to adhere to clause 5 led to the worker's
dismissal. The issue was referred to the conciliation service of
the Labour Court on the 19th December, 1990. A conciliation
conference held on the 21st December, 1990 produced a set of
settlement proposals which recommended that the worker's
dismissal on the 14th December, 1990 by the Company would be
changed to that of suspension for the period 14th December, 1990
to 1st January, 1991 subject to the following conditions:-
"1. On return to work on 2nd January, 1991 he will carry out
the same duties as presently being done by other combing
operatives as required by the Company whether during normal
shift or on overtime; this is without prejudice to his or the
Union's position on disputed work in accordance with Clause 5
of the Company/Union agreement and pending finalisation of
the overall negotiations as per the strike settlement
proposals of 3/7 December,1990.
2. A written warning will be issued to the worker on his
return to work.
3. As written warnings normally last for 12 months under
Clause 27 of the Company/Union agreement, and the Union
disputes that a written warning is warranted both parties
agree to refer to the Labour Court under binding arbitration
the question of a written warning and its duration in this
case."
A Court hearing was held in Kilkenny on the 13th March, 1991.
UNION'S ARGUMENTS:
3. 1. The worker concerned at all times acted in full compliance
with the terms of the Company/Union agreement. It was as a
result of his insistence that the Company do likewise and
adhere fully to Clause 5 of the Agreement, and also that the
Company carry out the terms of Labour Court Recommendation
13038 (which stipulated that Clause 5 should be operated by
the Company until such time as both parties agree an
alternative) that he was subjected to the process of the
disciplinary action.
2. The Union is seeking clarification as to whether the
Agreement is obligatory for both parties or is it merely a set
of rules and regulations which the Union is expected to abide
by under threat of referral to the disciplinary procedure
while at the same time the Company remains at liberty to
selectively choose with impunity the clauses they wish to
honour or ignore.
3. The incident which led to the disciplinary action by the
Company centres around the issuing by Management to the worker
of an unlawful instruction to work in an area outside his
normal or designated work category and more significantly to
operate a combination of machines that clearly constituted
"the creation of new jobs and revision or combination of
existing jobs" within the meaning of Clause 5 (f), which
necessitates prior consultation and agreement with the workers
involved and their Union representative before any change is
decided on or implemented. Since there was no agreement with
the worker concerned or his Union representative, an
instruction to work the aforementioned machines was in breach
of Clause 5 (f) and consequently would not be a lawful
instruction.
4. The Company in a cynical exercise of subjective
application of the Agreement ignored Clause 5 and the worker's
rights under same, and used the very same document (Clauses
10, and 28) in an attempt to accuse the worker and dismiss
him. Since the initial instruction was unlawful, it precludes
reference to Clauses 10, and 28, by the Company as it would be
contradictory to use the Agreement to uphold a breach of the
same Agreement. Therefore the disciplinary action taken
against the worker was unlawful and the fifty two week written
warning should be withdrawn accordingly.
COMPANY'S ARGUMENTS:
4. 1. There is a requirement in the Company/Union agreement
(clause 10) that an employee work reasonable overtime when
required by the Company. This requirement is essential to the
efficient operation of the plant, and has frequently been
acknowledged to be so by the Union. The worker concerned has
in the past complained to the Company that other employees
were working overtime while he was not.
2. When the worker refused on two occasions to do overtime he
was warned of the precariousness of his position. This
included a number of meetings with the worker and his Union
representative. At those meetings it was made clear to the
worker that there was a requirement as per the agreement and
that a continuing refusal would leave the worker liable to
dismissal. The Company subsequently dismissed the worker.
3. The Union has attempted to confuse this issue with a
separate issue - the worker has for some time been airing a
grievance with regard to the "workload" in the combing
section. The status of this grievance is that it has been
fully discussed and dealt with at local level, according to
the agreed procedures in the Company/Union agreement, and
since June, 1990 it has been up to the Union to refer this
matter to a "third party" if it wishes to pursue this issue.
4. The Company's clear position is that the grievance and the
working of overtime are separate matters. The settlement
proposals of the 21st December, 1990 were put forward for
recommendation by both parties. It should be noted that the
proposal does not address the specifics of the worker's
grievance. This reflects the acceptance of all parties that
the grievance and the disciplinary issues are separate and
must be considered separately.
5. The refusal of the worker to work overtime was a serious
disciplinary matter and merited serious disciplinary action.
The Company/Union agreement provides that the duration of a
written warning will be fifty two weeks. The period of
suspension and the written warning were merited and in fact
reflected a lenient approach on the part of the Company.
6. The acceptance by the Union and the worker of a period of
suspension and the simultaneous challenging of the warning is
an inconsistent and illogical position. The Company cannot
accept that on each occasion when disciplinary action is taken
that the agreed procedure will be on the agenda for discussion
and revision. One of the reasons the procedure is in place is
to prevent endless debate about the duration of warnings and
the comparative merits/demerits of one case over another.
RECOMMENDATION:
5. The Court has considered the issue before it which was
specifically "the question of a written warning and its duration
in this case."
The Court, having considered the circumstances of the case which
led to the acceptance of settlement terms of the dispute signed on
21st December, 1990, is of the opinion
(a) that Clause 5 of the Company/Union agreement is of
doubtful relevance to the circumstances of this case
insofar as whatever rights arise therefrom are
collective in their nature and give no individual right
of veto as argued by the Union.
(b) the original objection to the overtime in question was
not a principled objection but rather a question of the
personal convenience of the employee concerned.
For these reasons the Court takes the view that the terms of the
written warning should stand, but that notwithstanding the
relevant terms of the Company/Union agreement, recommends they
should end in this case after a period of 6 months from the date
of issue.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
26th March, 1991 Deputy Chairman.
T.O'D/J.C.