Labour Court Database __________________________________________________________________________________ File Number: CD9163 Case Number: LCR13278 Section / Act: S67 Parties: WATERFORD CORPORATION - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning the dismissal of a Social Employment Scheme (S.E.S.) participant.
Recommendation:
5. The Court has fully considered the views expressed by the
parties in their oral and written submissions.
The primary aim of the Social Employment Scheme, the Court
considers, was to assist the long term unemployed.
Whilst achieving this aim the scheme made it possible for Local
Authorities and others to undertake a wide variety of work for
which they would not otherwise have had the resources. The
resources were available under three headings; wages, materials
and supervision.
The Corporation in this case sought to maximise the benefits from
the scheme and in seeking for greater efficiency in the use of
resources demoted the complainant.
Given that this worker in common with others employed on S.E.S.
schemes had experienced a prolonged period of unemployment prior
to his acceptance on the scheme the Court considers that his
frustration at the demotion was understandable.
That he allowed this frustration to spill over and result in the
incident which led to his dismissal the Court considers is
unacceptable. It is the view of the Court that a full time worker
of the Corporation in similar circumstances, given the incident
which occurred, would have expected to be severely dealt with
under the disciplinary procedures. The Court finds that given all
the circumstances the incident was unwarranted and unacceptable.
However, the Court, having considered the nature of the employment
of the worker concerned, and the fact that he had suffered a
prolonged period of unemployment before being accepted for the
scheme is of the view that a more appropriate penalty would be
suspension for a period of 2 working weeks, without pay.
Subject to the foregoing the Court considers the worker concerned
should be compensated for the loss of payment under the Social
Employment Scheme. In calculating any entitlement account should
be taken of any Social Welfare payments secured in the period
concerned.
The Court so recommends.
Division: MrMcGrath Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD9163 RECOMMENDATION NO. LCR13278
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 67, INDUSTRIAL RELATIONS ACT 1946
PARTIES: WATERFORD CORPORATION
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning the dismissal of a Social Employment
Scheme (S.E.S.) participant.
BACKGROUND:
2. The worker concerned with the dispute was a participant in a
Social Employment Scheme of which the Corporation was a project
organiser. Participants of this scheme work on a week on/week off
basis through a 52 week span. The worker concerned commenced
employment on the S.E.S. as a general operative on 20th March,
1990. The worker was promoted to the position of ganger in
September 1990 and was subsequently demoted in November, 1990. On
30th November, 1990 the worker was involved in an incident which
resulted in his dismissal by his supervisor. The Corporation
claims that the worker was dismissed following his refusal to
carry out the instructions of his supervisor and his use of
abusive language to his supervisor in the presence of the other
members of the workforce. The Union claims that the worker was
wrongfully dismissed for using abusive language. No agreement
could be reached at local level discussions and the dispute was
referred on 7th December, 1990 to the Conciliation Service of the
Labour Court. A conciliation conference was held on 11th January,
1991 at which no agreement was reached and the dispute was
referred on 18th January, 1991 to the Labour Court for
investigation and recommendation. The Court investigated the
dispute in Waterford on 10th April, 1991.
UNION'S ARGUMENTS:
3. 1. On 30th November, 1990 the worker was one of a group of
workers assigned to plant trees. The workers exchanged small
talk which did not distract them from their work. The
supervisor instructed the group to disperse to different
parts of the open space so that they would be too far apart
to talk. These instructions were given in a churlish manner.
Given the recent demotion of the worker he retorted using a
term of abuse at the supervisor. The worker was dismissed
later that day.
2. The worker accepts that he should not have used words
which were abusive. Despite the fact that the worker agreed
to apologise to the supervisor no progress could be made
during negotiations on the dispute. The Union acknowledges
that the matter was one for the disciplinary procedures.
However, the penalty imposed in this instance was far too
severe and unfair.
3. The worker was wrongfully dismissed and should be
technically re-instated. As the S.E.S. only lasts for 12
months he cannot be actually re-instated. Technical
re-instatement means that the Corporation would have to pay
the worker's wages from the date of dismissal to March, 1991.
As a result of his wrongful dismissal the worker also
suffered debarrment from the receipt of social welfare
benefit for 6 weeks.
CORPORATION'S ARGUMENTS:
4. 1. At the end of 1990 a volume of agitation against the
S.E.S. had built up. Most of the circumstances stated as
grievances by the workers were part of the form and structure
of the S.E.S. The Corporation, as project organiser, had to
operate within the conditions of the S.E.S. The agitation
towards the S.E.S. made its supervision more difficult. The
Corporation's response to the situation was limited to the
minimum degree necessary to maintain control and preserve
order.
2. When the worker was promoted to the ganger position he
was told that he would be demoted if there was an overall
reduction in the number of men employed under the S.E.S. A
reduction in the workforce subsequently occurred and the
worker was demoted in line with the policy of last in/first
out.
3. The circumstances of the worker's dismissal are that on
30th November, 1990 he was given a legitimate instruction by
his supervisor. The worker showed reluctance to carry out
the instruction. On being pressed to do so he persisted in
his refusal and used abusive language to his supervisor in
the presence of other members of the workforce. The worker
was thereupon dismissed by the supervisor.
4. The Corporation must maintain discipline on work
projects. The use of abusive language to supervisors and
challenges to their authority cannot be tolerated if
discipline is to be maintained. Such breaches of discipline
warrant instant dismissal.
RECOMMENDATION:
5. The Court has fully considered the views expressed by the
parties in their oral and written submissions.
The primary aim of the Social Employment Scheme, the Court
considers, was to assist the long term unemployed.
Whilst achieving this aim the scheme made it possible for Local
Authorities and others to undertake a wide variety of work for
which they would not otherwise have had the resources. The
resources were available under three headings; wages, materials
and supervision.
The Corporation in this case sought to maximise the benefits from
the scheme and in seeking for greater efficiency in the use of
resources demoted the complainant.
Given that this worker in common with others employed on S.E.S.
schemes had experienced a prolonged period of unemployment prior
to his acceptance on the scheme the Court considers that his
frustration at the demotion was understandable.
That he allowed this frustration to spill over and result in the
incident which led to his dismissal the Court considers is
unacceptable. It is the view of the Court that a full time worker
of the Corporation in similar circumstances, given the incident
which occurred, would have expected to be severely dealt with
under the disciplinary procedures. The Court finds that given all
the circumstances the incident was unwarranted and unacceptable.
However, the Court, having considered the nature of the employment
of the worker concerned, and the fact that he had suffered a
prolonged period of unemployment before being accepted for the
scheme is of the view that a more appropriate penalty would be
suspension for a period of 2 working weeks, without pay.
Subject to the foregoing the Court considers the worker concerned
should be compensated for the loss of payment under the Social
Employment Scheme. In calculating any entitlement account should
be taken of any Social Welfare payments secured in the period
concerned.
The Court so recommends.
~
Signed on behalf of the Labour Court
22nd May, 1991 Tom McGrath
A.S. / M.O'C. _______________
Deputy Chairman