Labour Court Database __________________________________________________________________________________ File Number: CD91608 Case Number: AD91101 Section / Act: S13(9) Parties: H.B. ICE CREAM LIMITED - and - AMALGAMATED ENGINEERING UNION |
Appeal by the Company against Rights Commissioner's recommendation No. BC 411/91 concerning the dismissal of a worker.
Recommendation:
8. Having reviewed the submissions of the parties, the Court
considers that there was a positive attempt by the worker to
falsify his attendance record and that he continued to
misrepresent the position up to the hearing before the Rights
Commissioner. No mitigating circumstances of a credible nature
have been advanced for the worker's actions.
The worker's actions constituted serious misconduct which would
justify dismissal. However, it was not unreasonable for the
Rights Commissioner in determining the appropriate penalty, to
take into account the previous work record of the worker and to
place this event in the context of 13½ years satisfactory service.
The Court's view however is that the Rights Commissioner erred on
the side of leniency.
The Court considers that the worker
- should be suspended for a period of two months without
pay.
- that he should receive a final written warning that any
breach of rules, regulations or misconduct of any sort
on his part in the course of the next two years will
warrant instant dismissal.
- that he must clock in and out whenever he leaves or
enters the premises.
The Court so decides.
Division: CHAIRMAN Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD91608 APPEAL DECISION NO. AD10191
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
PARTIES: H.B. ICE CREAM LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
AND
AMALGAMATED ENGINEERING UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
recommendation No. BC 411/91 concerning the dismissal of a worker.
BACKGROUND:
2. The worker was employed as a fitter with the Company from
April, 1978 to 29th October, 1991. On Saturday 12th October, 1991
he was required to work overtime. At lunch time he left the
premises and did not return until 6.20 p.m. He clocked out at
6.40 p.m., the foreman and the other workers clocked out that
evening at 6.00 p.m.
3. The foreman was on leave the following Monday and Tuesday. On
the Wednesday when attending to the time card adjustments for the
previous week he was advised that the worker had clocked out at
6.40 p.m. Management investigated the matter and decided to
dismiss the worker on 29th October, 1991, for gross misconduct
involving his misrepresentation of attendance hours at work on
12th October, 1991 and for his consequent attempt to defraud the
Company of overtime payment.
4. The Union referred the matter to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner
investigated the dispute on 6th November, 1991 and issued the
following recommendation dated 13th November, 1991:-
"Falsification or attempted falsification of records of
attendance is a serious offence in justifying
dismissal.
I am satisfied that the worker's conduct on 12/10/1991
falls within this category. However, in view of the
previous good record of the worker and in the context
of his belated admission that the time recorded by the
security officer for his return to the factory on the
evening in question is correct, I recommend that the
penalty imposed on him should be converted to one of a
months unpaid suspension".
The worker was referred to by name in the Rights
Commissioner's recommendation.
5. The Company appealed the Recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. The
Court heard the appeal on 25th November, 1991.
COMPANY'S ARGUMENTS:
6. 1. The worker attempted unsuccessfully to defraud the
Company of a substantial amount of money by claiming that he
had worked on Saturday 12th October when in fact he had not
returned to work after lunch. This represented a fundamental
breach of trust which warrants dismissal.
2. The Rights Commissioner acknowledged that the incident
was a dismissible offence. However, he used the worker's good
record and a belated admission to convert the dismissal to one
of suspension. This implies that all workers with good
records will be treated leniently for serious offences. This
undermines the Company's standards of honesty and integrity
which it demands from all employees.
3. The Company's response to the worker's actions is
reasonable in the circumstances. Initially the worker stated
that he could not remember at what time he returned to work.
It was only at the Rights Commissioner's hearing that he
accepted as correct the entry of the time of his return to
work recorded in the security man's logbook. Such a belated
admission does not alter the Company's decision which was
based on information available to it at the time.
UNION'S ARGUMENTS:
7. 1. The worker left the premises to attend to some family
business. It was his intention to resume work in the
afternoon. (Craft workers are not obliged to clock in and out
when leaving the premises). He was delayed and returned to
work in late afternoon to clear away the work area and put
away his tools. The foreman was on leave on the following
Monday and Tuesday and he had no opportunity to explain his
circumstances. By Wednesday the worker had forgotten the
incident.
2. The worker, while remiss in not returning to work, never
intended to defraud the Company. The Rights Commissioner
accepted this fact and the Court is accordingly asked to
uphold his recommendation.
DECISION:
8. Having reviewed the submissions of the parties, the Court
considers that there was a positive attempt by the worker to
falsify his attendance record and that he continued to
misrepresent the position up to the hearing before the Rights
Commissioner. No mitigating circumstances of a credible nature
have been advanced for the worker's actions.
The worker's actions constituted serious misconduct which would
justify dismissal. However, it was not unreasonable for the
Rights Commissioner in determining the appropriate penalty, to
take into account the previous work record of the worker and to
place this event in the context of 13½ years satisfactory service.
The Court's view however is that the Rights Commissioner erred on
the side of leniency.
The Court considers that the worker
- should be suspended for a period of two months without
pay.
- that he should receive a final written warning that any
breach of rules, regulations or misconduct of any sort
on his part in the course of the next two years will
warrant instant dismissal.
- that he must clock in and out whenever he leaves or
enters the premises.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
26th November, 1991 ----------------
M.D./U.S. Chairman