Labour Court Database __________________________________________________________________________________ File Number: CD90381 Case Number: LCR13169 Section / Act: S20(1) Parties: BELL LINES LIMITED - and - MARINE PORT AND GENERAL WORKERS UNION |
Alleged unfair dismissal of a worker.
Recommendation:
5. The Court has considered the submissions made by the parties
and subsequent correspondence and takes the view that having
regard to the events which occurred in 1983 the claim for the
reinstatement of the worker in question is not sustainable. The
Court does not therefore recommend concession of the Union's
claim.
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD90381 RECOMMENDATION NO. LCR13169
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: BELL LINES LIMITED
(REPRESENTED BY GERRARD, SCALLAN AND O'BRIEN, (SOLICITORS)
and
MARINE PORT AND GENERAL WORKERS UNION
SUBJECT:
1. Alleged unfair dismissal of a worker.
BACKGROUND:
2. The worker concerned is a docker who was employed by the
Company in 1969 as a gantry driver. On the 15th February, 1983
with three other workers he joined the M.P.G.W.U. On the 2nd May,
1983 an official trade dispute arose in Waterford Port between
Clyde Shipping Limited and the Union and the worker concerned took
leave of absence from work in order to assist the Union in the
dispute. On the 6th May, 1983 he applied to the Company for an
extension of his leave of absence. The Company agreed to his
taking one week's holiday as from 9th May, 1983. On the 11th May,
1983 the dispute escalated and pickets were placed on Bell Lines
Limited. The worker concerned and two other workers refused to
pass the pickets. The pickets were lifted by the Union on the
28th May, 1983. The worker concerned with two other workers
reported for work on the 30th May, 1983. They were sent home
pending disciplinary action and a meeting with the A.T.G.W.U.
which represented the majority of workers in the Company. The
worker concerned commenced a hunger strike on the 4th June, 1983
which lasted for a week, in protest at his treatment by the
Company. During this time two of his colleagues rejoined the
A.T.G.W.U. and were allowed to resume work. The worker concerned
refused to relinquish membership of the M.P.G.W.U. and the Union
claims that this is the reason he was dismissed by the Company.
Management claims that the worker dismissed himself by absenting
himself from his place of work without permission. The Company
states that the matter of the worker's Union membership is of no
concern to it. The Union sought the assistance of a Rights
Commissioner in resolving the dispute but the Company objected to
a Rights Commissioner's investigation. The Union then referred
the dispute to the Labour Court on the 4th July, 1990 under
Section 20(1) of the Industrial Relations Act, 1969, and agreed to
be bound by the Court's recommendation. A Court hearing was held
on the 8th January, 1991. Subsequent to the hearing
correspondence was received from both parties which was considered
by the Court.
UNION'S ARGUMENTS:
3. 1. When the worker concerned along with two other colleagues
reported for work on the 30th May, 1983 the Company told them
they could not start work until Management held a meeting with
the A.T.G.W.U. The terminal manager told them they were
"sacked" and that there was no work for them unless they went
back to the A.T.G.W.U. The worker requested Management to
clarify this statement in writing but this request was
refused.
2. The worker claimed wages which were due to him for the
week he was on holidays and discovered that 2.50 days pay had
been deducted. When he queried this he was advised that "his
holidays ended the day the picket was placed." In protest the
worker refused the wage packet. He and the other workers
continued to report for work daily at Bell Lines.
3. At a general meeting of the workforce (excluding
M.P.G.W.U. members) a majority of 62 out of 72 workers decided
that the Company be informed that the workforce had no
objection to working alongside M.P.G.W.U. members. On the 3rd
June, 1983 the worker spoke to the Personnel Manager who
informed the worker that his position was unchanged, and when
requested, refused to clarify the Company position in writing.
4. On the 4th June, 1983 the worker reported for work but was
again turned away by the Company. Believing that he was being
denied his constitutional rights he commenced a hunger strike
which lasted until the 10th June, 1983. While the other three
former M.P.G.W.U. members returned to the A.T.G.W.U. and
resumed work with Bell Lines, the worker concerned refused to
relinquish membership of the M.P.G.W.U. At no stage prior to
the placing of the official picket had the worker been
approached by Management on the question of his Union
membership nor was his future with the Company threatened. It
was only following the placing of the official picket on Bell
Lines that the question of his future employment became an
issue with the Company.
5. In all the time that has since elapsed the Company has
never responded to repeated requests (including one from the
worker's solicitor) for clarification in writing of the
grounds on which the worker was being refused work. The
Company has refused many requests by the Union in the
intervening years at attempts to resolve the dispute including
a Rights Commissioner's investigation. It is clearly evident
that the procedures which would normally be applied in the
case of the dismissal of a worker who, in this case had 14
years' service was not applied in this instance.
6. At no stage was he to receive reasons in writing for his
dismissal from Bell Lines, even though he requested this
information from the Company on at least three occasions.
Even the house note (details supplied to the Court) which
carried instructions to the Managers involved, failed in its
commitment that "following discussions with the Union, the
Company will contact the above mentioned individuals,"
referring to the worker and other M.P.G.W.U. members.
7. The summary dismissal of the worker concerned was flawed
on procedural grounds, and even if that was not the case the
rules of natural justice must have some relevance to the
question of whether a dismissal is fair or unfair. A breach
of these rules must be considered in deciding whether or not a
long serving employee was treated fairly or not. The Company
failed on all accounts and the action taken in dismissing the
worker summarily and without notice was totally at variance
with the procedures legislated to protect the rights of
workers.
COMPANY'S ARGUMENTS:
4. 1. Prior to ending his hunger strike the worker concerned
communicated a list of demands/conditions for the ending of
his hunger strike (details supplied to the Court). There was
no reference to the worker's union membership or the alleged
refusal by the Company to permit the worker to belong to the
M.P.G.W.U. At no time did the Company impose any conditions
on any of its workers in relation to Union membership. The
worker was employed by the Company without comment or
interference from the date of his joining the M.P.G.W.U. to
the date of the commencement of the picket. The Company did
however publicly state that it would only recognise, for the
purpose of negotiation, the union which represented the
majority of its employees (A.T.G.W.U.).
2. The worker during his period of employment was a most
unsatisfactory employee who had engaged in active disruption
of work at the Company's terminal. The Company is not
prepared to re-instate the worker, and, furthermore is not in
a position to do so. The Company has no position available to
the worker and is in the process of reorganisation involving
the redeployment of its workforce. The claim by the worker
for re-instatement is both unreasonable and inappropriate in
the circumstances of this case. The worker was never
dismissed or constructively dismissed by virtue of conditions
imposed on him in relation to union membership of any or any
particular union or in any other manner.
3. The worker has by his own actions terminated his
employment with the Company and therefore cannot be entitled
to be reinstated or re-engaged in any capacity by the Company
or to any compensation. The worker has been employed as a
docker on the north wharf at Waterford Docks. The Company
contends that at the time of referral of this matter to the
Court no trade dispute exists between the parties.
4. The worker has been guilty of unreasonable delay in
seeking redress by way of re-instatement or any redress and,
while, it is accepted by the Company that there is no time
limit provided for within the legislation it is unreasonable
that the worker should be entitled to redress in any manner or
form which would not be available to the worker either by
resorting to the common law or to statutory enactments by
virtue of the efluxion of time. Members of the Company's
staff who would have been in a position to provide important
evidence are no longer available to the Company and, in one
case, a relevant and important senior member of Management is
now deceased since the dispute arose.
5. The worker, as claimed by the Union, did not simply refuse
to pass a picket placed at the Company's terminal. He
actually picketed the terminal. This can be seen from the
list of demands made by the worker. The contention by the
Union that the worker was dismissed by reason of his Union
membership does not accord with the facts and is not referred
to in the list of demands already referred to.
RECOMMENDATION:
5. The Court has considered the submissions made by the parties
and subsequent correspondence and takes the view that having
regard to the events which occurred in 1983 the claim for the
reinstatement of the worker in question is not sustainable. The
Court does not therefore recommend concession of the Union's
claim.
~
Signed on behalf of the Labour Court
____________________________
John O'Connell
15th February, 1991. Deputy Chairman
T.O'D/J.C.