Labour Court Database __________________________________________________________________________________ File Number: CD94336 Case Number: AD9464 Section / Act: S13(9) Parties: NATIONAL MEDICAL CARE LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation no. CW15/94.
Recommendation:
The Court has considered all of the views expressed by the parties
in their oral and written submissions. The Court finds that on
the balance of probabilities the finding of the Rights
Commissioner was reasonable.
The Court accordingly upholds the Recommendation of the Rights
Commissioner and rejects the appeal of the worker.
Division: MrMcGrath Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD94336 APPEAL DECISION NO. AD6494
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
NATIONAL MEDICAL CARE LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation no. CW15/94.
BACKGROUND:
2. 1. The Company manufactures specialised sterile medical
devices, including dialysers (artificial kidneys) for
the international market. It employs 140 workers. The
employee concerned works as a sterilisation operator and
has worked in the sterilisation area since 1980. The
dispute concerns the demotion of the worker arising from
a discrepancy issue whereby documents were altered and
one dialyser was removed from lot C3L013 in September
1993. Following a comprehensive investigation by the
Company the worker concerned was demoted and transferred
from sterilisation to the production area. The Union
claimed that the worker was unfairly treated.
Management rejected the claim.
2. The dispute was referred to a Rights Commissioner for
investigation and recommendation. The Rights
Commissioner investigated the dispute on the 1st May,
1994. In his findings the Rights Commissioner stated:
"I appreciate that the proposed disciplinary action
in this instance would have a very profound effect
on the worker. There is no doubt that documents
were altered and one unit went missing. The
Company mounted a through investigation before
reaching any conclusion. I am satisfied that this
was done in a procedurally fair manner. The only
issue before me is whether the conclusion reached
by the Company was fair and reasonable. I consider
that it was".
On the 24th May, 1994 the Rights Commissioner issued his
recommendation as follows:-
"I recommend that the Union and the worker accept
the decision of the Company in this dispute".
(The worker was named in the Rights Commissioner's
recommendation).
On the 17th June, 1994 the Union 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 22nd September, 1994.
UNION'S ARGUMENTS:
3. 1. During the period when the unit was removed from the lot
a number of other personnel had access to the lot and
there are no grounds to discount the possibility that
the other sterilisation operator removed the unit.
Units could also be removed by a member of the
laboratory staff because of a possible botched sample.
2. The alteration of documentation could even take place
while the lot is in the quarantine area.
3. If there was a difference in the number of units on a
pallet the operator would bring this to the attention of
the supervisor. If the pallet was above the maximum
number permitted it would normally be re-sterilised.
There was no question that the operator would be in fear
of disciplinary action.
4. The Company has always encouraged the workforce to
report mistakes. The worker concerned has always
accepted this approach; therefore, there is no logical
reason for him not to own up if he made an error. He
has been a most conscientious worker with an excellent
record. The decision to discipline him has affected him
profoundly. He has opted to leave the Company in
December, 1994 under the voluntary severance programme.
He would not have done so had he not been disciplined.
5. If the Court upholds the Rights Commissioner's
recommendation the claimant will remain in production,
be reduced from Grade 3 to 2 and lose 20% premium. He
will lose approximately #55 per week excluding overtime.
6. The Union contends that the evidence presented against
the worker was circumstantial and the Rights
Commissioner erred in his judgement that the conclusion
reached by the Company was fair and reasonable.
COMPANY'S ARGUMENTS:
4. 1. When a processed lot of dialysers was transferred from
production on the 6th September, 1993 the number of
units counted was 4,609. It was checked by other
employees and a count of 4,609 recorded. The batch was
sterilised on the 7th September, 1993. Subsequently the
log sheet showed signs of alteration and the number
entered on the sheet was 4,608. Following an extensive
investigation of the available documentation and
discussions with all parties involved the Company
concluded that the worker concerned removed one unit
from the lot. The unit was removed to reduce the total
quality sterilised from 4,609 to 4,608. This reduction
was significant as the maximum number of this particular
type of dialyser that may be sterilised together is
4,608 to comply with Company procedures. Should the
relevant procedures not be followed then the sterility
of the entire lot would be put at risk. The Company
contends that the worker concerned removed one unit from
the lot to avoid disciplinary action.
2. The Company is absolutely satisfied that documents were
definitely falsified by the worker concerned. It cannot
risk the possibility of this happening again. In
accordance with the Company/Union agreement this offence
can warrant dismissal. However, in view of the worker's
service record the Company relocated the worker to
production where documentation is a smaller requirement
of the job function. This action was the most suitable
in the circumstances. The Company, in all the
circumstances treated the worker in a fair and
reasonable manner.
DECISION:
The Court has considered all of the views expressed by the parties
in their oral and written submissions. The Court finds that on
the balance of probabilities the finding of the Rights
Commissioner was reasonable.
The Court accordingly upholds the Recommendation of the Rights
Commissioner and rejects the appeal of the worker.
~
Signed on behalf of the Labour Court
12th October, 1994 Tom McGrath
T.O'D../D.T. _______________
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Tom O'Dea, Court Secretary.