Labour Court Database __________________________________________________________________________________ File Number: CD90644 Case Number: LCR13240 Section / Act: S67 Parties: LIMERICK CORPORATION - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Claim by the Union that a worker was unfairly dismissed and should be re-instated.
Recommendation:
5. The Court having considered the submissions of all the parties
is less than convinced that the Corporation were not fully
cognizant of the fact that teaching/coaching was being undertaken.
The Court considers in all the circumstances that the complainant
should be offered a position in the swimming pool environs as far
as possible commensurate with the position he previously held.
The period from the date of his dismissal to date be treated as a
period of suspension.
Division: MrMcGrath Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD90644 RECOMMENDATION NO. LCR13240
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 67, INDUSTRIAL RELATIONS ACT, 1946
PARTIES: LIMERICK CORPORATION
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Claim by the Union that a worker was unfairly dismissed and
should be re-instated.
BACKGROUND:
2. In 1982 the worker concerned was appointed to the position of
supervisor at the Corporation's swimming pool at Roxboro. The
worker subsequently organised swimming lessons for the local
schools. He raised the matter with his immediate superior (the
superintendent of recreation and amenity) in October, 1985. By
letter dated 9th October, 1985 the superintendent informed him
that, having checked with the Corporation, he had permission to
give swimming lessons during working hours and outside working
hours subject to a number of conditions (details supplied to the
Court). In early 1986, the Corporation consulted with its
insurers and was advised that coaching or teaching by members of
staff at Roxboro swimming pool is outside their terms of
employment and is not therefore covered by the Corporation's
public liability insurance. By letter dated 29th January, 1986
the worker was instructed to cease coaching and teaching
activities, whether in a voluntary capacity or for gain. The
worker did not comply with this instruction (he claims he did not
receive the letter). By letter dated 4th May, 1990 the worker was
instructed that swimming lessons for schools or formal groups
should cease from that date. The worker complied with this
directive. The Corporation carried out an investigation of
coaching/activities at Roxboro swimming pool during the period
from 12th January, 1990 to 5th May, 1990 and found that the worker
had organised swimming classes during that period. Disciplinary
hearings were held in July, 1990 regarding the matter and on 31st
July, 1990 the Corporation decided that the worker's dismissal was
warranted. The Corporation was prepared to consider
representations on behalf of the worker before dismissal was put
into effect. On 21st August, 1990 the Corporation heard
representations on his behalf and offered him redeployment as a
general operative. The worker rejected this offer and his
employment with the Corporation was terminated with effect from
23rd August, 1990.
The Union claims that the worker was unfairly dismissed and should
be re-instated. The Corporation rejects the claim. No agreement
was reached at local level discussions and the matter was referred
on 11th September, 1990 to the Conciliation Service of the Labour
Court. A conciliation conference was held on 25th October, 1990
at which no agreement was reached and the dispute was referred
on 5th November, 1990 to the Labour Court for investigation and
recommendation. The Labour Court investigated the dispute in
Limerick on 5th March, 1991 (the earliest date suitable to the
parties).
UNION'S ARGUMENTS:
3. 1. When the worker commenced employment as a supervisor there
was a need to generate greater use of the facilities at
Roxboro swimming pool. In order to attract greater use by
local primary schools the worker organised swimming lessons.
The schools were reluctant to use the pool at first but due to
the teaching skills and the efforts made by the worker they
became regular users of the swimming pool. The worker has an
excellent safety record and the primary school children are
covered by the schools' public liability insurance.
2. It is very hard to believe that the Corporation were not
aware of the extra coaching which was provided by the worker.
The worker has never hidden or tried to deny the fact that he
was giving teaching lessons. As far as he was concerned he
was doing nothing wrong and the reward for his efforts was
fully justified. When he received a written instruction in
May, 1990 that swimming lessons should cease he complied with
it. He did not receive the Corporation's letter of 29th
January, 1986 concerning the cessation of swimming lessons.
3. When the worker was appointed in 1982 there were two other
supervisors and an engineer superintendent to manage the three
recreactional complexes operated by the Corporation. By 1990
the Corporation had eliminated the management structure, with
the exception of the worker concerned, by means of voluntary
redundancies and non-replacement of staff. By unfairly
dismissing the worker concerned the Corporation has now
succeeded in completely eliminating the grade of supervisor at
their recreational complexes.
4. The worker did not receive any final warning of dismissal.
The offer of demotion and redeployment as a general operative
was unacceptable and the worker has suffered due to the loss
of his job. The Union accepts that the Corporation has a
right to impose discipline but the punishment in this case is
far too severe. The worker should be re-instated to his
former grade of supervisor.
CORPORATION'S ARGUMENTS:
4. 1. By letter dated 29th January, 1986 the worker concerned
was instructed to cease teaching or coaching activities at
Roxboro swimming pool. In the following years verbal
instructions prohibiting coaching or teaching were given to
him on numerous occasions. The worker deliberately and
consistently disregarded these instructions.
2. It proved difficult to monitor whether or not the
Corporation's instructions were being complied with. The
difficulty was compounded when the superintendent of
recreation and amenity position become vacant in 1988, and was
not subsequently filled. It was not until 1990, that the
Corporation suspected that irregularities were occurring
regarding teaching/coaching at Roxboro. The Corporation then
undertook an investigation of the irregularities.
3. The Corporation's investigation revealed that the worker
concerned had given swimming lessons for personal gain while
on duty. He had put the safety of pool users at risk by
simultaneously engaging in teaching whilst he was the only
lifeguard on duty. He had completely compromised and
undermined his authority as supervisor by flouting
management's instructions.
4. The findings of the investigation were put to the worker
at disciplinary hearings in July, 1990. He admitted giving
swimming lessons and receiving payment for them. The
Corporation decided on 31st July, 1990 that his dismissal was
warranted but, following representations heard on 21st August,
1990, decided to offer the worker alternative employment as a
general operative. This humanitarian gesture was rejected by
the worker. As the worker had made his position of supervisor
untenable and had refused the offer of alternative employment,
the Corporation had no option but to terminate his employment.
RECOMMENDATION:
5. The Court having considered the submissions of all the parties
is less than convinced that the Corporation were not fully
cognizant of the fact that teaching/coaching was being undertaken.
The Court considers in all the circumstances that the complainant
should be offered a position in the swimming pool environs as far
as possible commensurate with the position he previously held.
The period from the date of his dismissal to date be treated as a
period of suspension.
~
Signed on behalf of the Labour Court
Tom McGrath
___________________________
27th March, 1991 Deputy Chairman.
A.S./J.C.