Labour Court Database __________________________________________________________________________________ File Number: CD90651 Case Number: AD9147 Section / Act: S13(9) Parties: MONAGHAN MUSHROOMS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union of Rights Commissioner's recommendation No. C.W. 144/90 concerning the discipline of a worker.
Recommendation:
5. The Court having considered the submissions made is of the
opinion that the Rights Commissioner's recommendation is
reasonable and should stand. The Court so decides.
Division: Mr O'Connell Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD90651 APPEAL DECISION NO. AD4791
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: MONAGHAN MUSHROOMS LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union of Rights Commissioner's recommendation
No. C.W. 144/90 concerning the discipline of a worker.
BACKGROUND:
2. On 23rd January, 1990 the worker concerned was requested to go
to the 'bale breaker' to cut strings. The worker objected very
strongly to what he viewed as an unfair instruction as another
employee with less experience was to have been put on this job.
His refusal to carry out the instruction resulted in him being
issued with a verbal warning. On 30th January, 1990, he refused
another instruction from his manager and was issued with a final
written warning. The Union say this was a first written warning
and that another operator had also refused the same instruction
but received no reprimand. On 8th June, 1990, another incident
occurred. The Company say he refused to carry out an instruction
to spread gypsum bags on a compost row. This is not accepted by
the Union. The worker was suspended with pay pending an
investigation. Following Union representation the suspension was
lifted. The Union contends that he was suspended and threatened
with a final written warning but that both these penalties were
lifted upon representation. On 15th June, 1990, there was a
further incident when the worker refused to operate 'the turner'
as he was unwell and felt that it would be better if he operated
'the loader' instead. Following Union intervention, he agreed to
operate 'the turner.' The Union referred the matter to a Rights
Commissioner on the basis that the worker's behaviour did not
warrant a final written warning and he should be given a clean
slate. On 23rd October, 1990, the Rights Commissioner issued the
following recommendation.
"I recommend that the Union and the worker accept the final
written warning and that the Company (given a period of
co-operation by the worker) restores him to a clean slate
status after a reasonable time."
(The worker was named in the recommendation).
The Union rejected the Rights Commissioner's recommendation and on
7th November, 1990, appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. The Court heard the
appeal on 9th May, 1991, in Cavan, (the earliest date suitable to
the parties).
UNION'S ARGUMENTS:
3. 1. All of the incidents that took place were as a direct
result of different treatment being given by the manager at
the time to the worker concerned. The manager has since left
the Company and the worker now enjoys much fairer treatment
from the new manager. The worker concerned is a good employee
but there was conflict with the manager at the time. The
manager appeared to be set against the worker. The worker was
treated differently for no reason.
2. The Rights Commissioner refers to the Union saying that
the worker was issued with a final written warning. This is
not true. He was threatened with one but it was withdrawn on
representation by the Union. It is this reference to a final
written warning that has lead to the Rights Commissioner's
Recommendation being appealed. The worker concerned feels
that he cannot accept something that did not happen.
3. The Company say that they will issue him with a clear
slate on 15th June, 1991, subject to acceptance of the Rights
Commissioner's Recommendation. This is not acceptable because
of the erroneous reference to a final written warning. The
Union wishes the removal from the record of what was an
unjustifiable warning imposed because the worker was singled
out by the manager and treated differently to his colleagues.
COMPANY'S ARGUMENTS:
4. 1. All staff are required to be fully flexible in their
positions and consequently can be asked to do a range of
different duties. The worker concerned had consistently
refused to co-operate with reasonable management requests and
was consequently issued with a final written warning.
2. He has not shown any improvement in attitude or behaviour
and the instances of 8th and 15th June, 1990, were almost a
direct replica of the situation in January, 1990, which
resulted in the issuing of a final written warning. On both
occasions the Union Official intervened and the Company acted
with great restraint in not dismissing him.
3. There is approximately one month more to run of the final
warning and will probably have expired when the parties
receive the Court's Decision. The Company consequently feel
that the industrial relations procedures have been used as a
mechanism to undermine the legitimacy of the final written
warning during the period in which it is in force.
DECISION;
5. The Court having considered the submissions made is of the
opinion that the Rights Commissioner's recommendation is
reasonable and should stand. The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
5th June, 1991. ---------------
B.O'N/J.C. Deputy Chairman