Labour Court Database __________________________________________________________________________________ File Number: CD92590 Case Number: AD92225 Section / Act: S13(9) Parties: WILLIAM MCDERMOTT - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Employer against Rights Commissioner's recommendation No. CW300/92 concerning the demotion of a worker.
Recommendation:
5. Having regard to the submissions of the parties and the oral
evidence presented at the hearing, the Court considers that the
actions and responses of the supervisor on the day the incident
took place raised serious questions as to his suitability for his
position of responsibility over other staff.
The Court does not consider that his demotion was unfair in the
circumstances and does not accept that it resulted from his
joining the Union.
Accordingly the Court does not consider that it is appropriate to
re-instate him as supervisor and therefore upholds the Company's
appeal.
The Court so decides
Division: Mr Heffernan Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD92590 APPEAL DECISION NO. AD22592
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
INDUSTRIAL RELATIONS ACT 1969
SECTION 13(9)
PARTIES: WILLIAM MCDERMOTT
(Represented by The Federation of Irish Employers)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Employer against Rights Commissioner's
recommendation No. CW300/92 concerning the demotion of a worker.
BACKGROUND:
2. The worker concerned commenced employment in July, 1988. He
was appointed to the position of supervisor in March, 1989. On
the 13th March, 1992 together with two colleagues, he went to the
bank to cash his pay cheque. This exercise normally took fifteen
minutes. They left work at 10.50 a.m. and returned at 11.50 a.m.
The worker concerned advised his manager that the reason for the
delay was that he had lost his pay cheque, and he and the other
two workers spent some time searching for it. It subsequently
transpired that the three workers had joined the Union. Some days
later the worker concerned was demoted by the Employer. The Union
claimed that the worker had been unfairly treated and referred the
issue to a Rights Commissioner for investigation and
recommendation. On the 18th August, 1992, the Rights Commissioner
issued his recommendation as follows:-
"I recommend that the worker is re-appointed to his position
as Supervisor with effect from Monday 14th September on a
further probationary period in the position for 3 months".
(The workers was named in the Rights Commissioner's
recommendation).
On the 24th September, 1992 the Federation of Irish Employers, on
behalf of the Employer, appealed the Rights Commissioner's
recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on the
2nd November, 1992.
UNION'S ARGUMENTS:
3. 1. The worker concerned has an excellent employment record
with the Employer. He has never received warnings either
during his time as a general operative or as a supervisor. He
has suffered a substantial reduction in his earnings as a
result of his demotion.
2. The worker was apprehensive about telling his Employer
the reason for his lateness because of possible repercussions
with regard to his union membership. In normal circumstances
the time taken to enrol the worker in the Union would have
been a matter of minutes. On this particular day Head Office
staff were very busy which resulted in the delay. The Union
contends that the worker was demoted because of his union
membership. The penalty imposed on him was far too severe and
he should be re-instated to his former position of supervisor.
EMPLOYER'S ARGUMENTS:
4. 1. The business is a small family business and is run by
the Employer who is also the manager. The worker concerned,
as supervisor, was in a position of trust. By his actions he
abused that trust and also involved two subordinates whom he
was supposed to manage. Despite a number of opportunities to
tell the truth he persisted with his story until it was made
obvious to him that the Employer knew the story was not true.
2. The Employer rejects the Union's claim that the worker
was demoted because he joined the Union. The business is
located in the Easons warehouse within the context of a highly
unionised workforce. The Employer has never intimated to his
workforce that it is inappropriate for them to joint a Union.
The Employer was himself a union member for many years as an
employee of Easons.
3. The Employer finds that the Rights Commissioner's
recommendation is impossible to implement because the Employer
must have trust and confidence in the Supervisor. It is not
practical for the Employer to address the issue in the manner
proposed by the Rights Commissioner. A new Supervisor has
since been appointed who has proved to be very satisfactory in
the position.
DECISION:
5. Having regard to the submissions of the parties and the oral
evidence presented at the hearing, the Court considers that the
actions and responses of the supervisor on the day the incident
took place raised serious questions as to his suitability for his
position of responsibility over other staff.
The Court does not consider that his demotion was unfair in the
circumstances and does not accept that it resulted from his
joining the Union.
Accordingly the Court does not consider that it is appropriate to
re-instate him as supervisor and therefore upholds the Company's
appeal.
The Court so decides
~
Signed on behalf of the Labour Court
Kevin Heffernan
23rd November, 1992 ---------------
T. O'D/U.S. Chairman