Labour Court Database __________________________________________________________________________________ File Number: CD90699 Case Number: LCR13178 Section / Act: S67 Parties: TANKFREIGHT (IRELAND) LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Alleged unfair dismissal of a worker.
Recommendation:
8. Having considered the submission of both parties, the Court
is of the view that the Company was within its rights in
dismissing the worker concerned. However, it is also the Court's
view that the impact of dismissal should be eased by an ex-gratia
payment of #2,000.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD90699 RECOMMENDATION NO. LCR13178
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1976
SECTION 67
PARTIES: TANKFREIGHT (IRELAND) LIMITED
(Represented by the Federation of Irish Employers)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Alleged unfair dismissal of a worker.
BACKGROUND:
2. Tankfreight (Ireland) Limited is a distribution company
located at North Wall, Dublin 1. In January, 1989 the Company
entered into a contract with Texaco Ireland Limited for the
distribution of all their products. This followed a major
rationalisation undertaken by Texaco which involved many staff
being made redundant.
3. As the Company was expanding its business at this time it
employed a number of former Texaco staff including the worker here
concerned. He commenced employment on 1st February, 1989 and was
attached to the fleet which catered for general haulage and was
sometimes used to supplement the fleet which transported the
Texaco products.
4. On Tuesday 4th September, 1990 the worker was told to be on
standby for a trip to Cork. He was subsequently informed that the
trip was cancelled as the load was delayed in England. On the
Thursday he was informed that the trip to Cork would take place
the next day. The worker reported for work on Friday, 7th
September, collected the load from the North Wall and returned to
the Company depot where he handed in the delivery dockets and
informed the Company representative that he would not be doing the
trip as it would involve Saturday working which was outside of his
conditions of employment. He was subsequently handed a
disciplinary form and informed that he was being suspended with
pay pending an investigation. On the 11th September he was
informed that he was dismissed which was later confirmed in
writing.
5. The worker appealed against the dismissal under the Company's
internal disciplinary procedure. The appeal was rejected. The
issue was then referred to the conciliation service of the Labour
Court on 13th November, 1990. A conciliation conference was held
on 19th November, 1990. As no agreement was reached the parties
consented to a referral to the Labour Court for investigation and
recommendation. A Court hearing was held on 4th January, 1991.
UNION'S ARGUMENTS:
6. 1. The run to Cork would have meant an overnight stay and
since it was Friday would have involved Saturday working.
The Company/Union agreement covers a five day, 40 hour week
Monday to Friday with a commitment to work 55 hours over
these five days. Each working day not to exceed 11 hours
with weekend working being optional to the drivers.
2. The Company had previously issued a verbal instruction
to drivers not to carry out the Cork run by returning to
Dublin on the same day. The company also made it clear at
National Level that no driver was expected to work more than
11 hours in any given day in line with Company/Union
Agreement.
3. The work involved in this incident has caused major
problems since the very first delivery. The discharge time
being the main problem. The normal time required for this
delivery is 16 hours, i.e. 10 hours driving time, 1 hour
sampling, minimum of 4 hours off loading and 1 hour meal
break. The replacement driver decided to return to Dublin
that day. He left at 8.30am and returned at 12 midnight, a
total of 15.50 hours which is outside the agreed maximum hours
per day.
4. In dismissing the worker here concerned the Company
referred to his previous bad record. However, on examination
this statement does not stand up. (Details supplied to the
Court).
COMPANY'S ARGUMENTS:
7. 1. The worker was dismissed because of his refusal to
follow a legitimate instruction which was clearly within the
scope of his contract of employment. This, coupled with his
deplorable past disciplinary record, and the fact that he was
on a final written, left the Company with no option.
2. The worker's defence of not wanting to work on the
Saturday in question is contrary to his contract of
employment which he agreed and accepted.
3. Nobody told the worker that he would have to actually
work on the Saturday. This trip could have been completed on
the same day, as it has been in the past by drivers,
including the worker here concerned.
4. If the worker had a genuine problem with Saturday
working or anything else he could have used the grievance
procedure. This he did not do.
RECOMMENDATION:
8. Having considered the submission of both parties, the Court
is of the view that the Company was within its rights in
dismissing the worker concerned. However, it is also the Court's
view that the impact of dismissal should be eased by an ex-gratia
payment of #2,000.
~
Signed on behalf of the Labour Court
8th February, 1991 Evelyn Owens
M.D./M.O'C. _______________
Deputy Chairman