Labour Court Database __________________________________________________________________________________ File Number: CD95677 Case Number: LCR15078 Section / Act: S20(2) Parties: DELPHI PACKARD ELECTRIC SYSTEMS (Represented by THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION;AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION |
Dispute concerning the status of 'counselling' as part of the Company's disciplinary procedure.
Recommendation:
Having considered the submissions, the Court is satisfied that the
Company's interpretation of the disciplinary procedure is correct.
The Court, accordingly, finds that the counselling stage is not
part of the disciplinary procedure.
Division:
Text of Document__________________________________________________________________
CD95677 RECOMMENDATION NO. LCR15078
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(2), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: DELPHI PACKARD ELECTRIC SYSTEMS
(represented by the Irish Business and Employers' Confederation)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Dispute concerning the status of 'counselling' as part of the
Company's disciplinary procedure.
BACKGROUND:
2. The issue in dispute arose during a Rights Commissioner's
investigation (12th September, 1994 : ST218/94) into a dispute
concerning the imposition of a verbal warning on the employment
record of one employee. The worker had been counselled by her
supervisor having had 3 lates (on the 1st 3rd and 7th of March,
1994) in a rolling 20-day period. On the 28th of March, the worker
was absent from work and was given a verbal warning. The Union
side claimed that the warning was unfair on the grounds that, as
the worker had already been counselled for her lates, they should
not have been used again in a subsequent stage of the disciplinary
process. The Company's position was that the counselling did not
form part of the disciplinary procedure but was merely cautionary
advice, which would help the employee avoid entering into the
disciplinary procedure. The Rights Commissioner recommended (inter
alia) that the substantive issue of the status of counselling would
be more appropriate to determination by the Labour Court.
Accordingly, the issue was referred jointly by the parties to the
Labour Court, on the 8th of November, 1995, in accordance with
Section 20(2) of the Industrial Relations Act, 1969. The Court
investigated the matter on the 1st of February, 1996.
COMPANY'S ARGUMENTS:
3. 1. Counselling is not part of the disciplinary process but
merely an advisory statement. This is clearly pointed
out in the Company/Union Agreement (details supplied to
the Court).
2. If the Company were to concede to the Union's argument,
then it is clear that counselling would become part of
the Disciplinary Procedure.
3. Counselling does not cover the previous absence but the
consequence of future absence. The Company have always
operated Section 11 of the Agreement in this manner.
4. At a Rights Commissioner's hearing in 1993 (CW353/93),
the Union sought to have a counselling, which had been
recorded against an employee, set aside and declared
void. At that hearing the Union quite clearly said that
counselling was not and should not amount to a
disciplinary step (details supplied). Their present
argument would clearly make it a disciplinary step.
5. It is clear from all relevant explanatory information
produced both by unions and employers, that counselling
is not part of the disciplinary process.
UNIONS' ARGUMENTS:
4. 1. Central to the dispute is the Company's interpretation of
what counselling actually means when it is considered in
the context of the disciplinary procedure. The text of
the Agreement reads as follows: "prior to any
disciplinary action being taken the employee shall be
counselled by his or her supervisor and advised of the
deficiency and what must be done in order to correct the
situation. Only when the problem persists will stage 1
of the disciplinary procedure be implemented". In this
case, the Company maintained that the issuing of the
verbal warning was justified on the basis that the worker
was late on the 3rd and 7th of March and absent on the
28th March, all within a 20-day rolling period. However,
as the worker had been counselled for the 2 lates, the
Company is in breach of a binding Recommendation of the
disputes tribunal (Section 7 of the Labour Agreement)
that "a late or absence which has been applied by the
Company in determining a disciplinary stage may not be
used again in determining a subsequent stage of
discipline".
2. The Company has applied the Union's understanding of the
disciplinary procedure in many cases (details supplied to
the Court).
3. It is generally accepted that the counselling stage is a
stage that ultimately leads to the stage of discipline.
If this is the case, the counselling stage cannot be
divorced from the rest of the procedure. The Rights
Commissioner points to the fact that the counselling is
actually mentioned within the disciplinary procedure.
RECOMMENDATION:
Having considered the submissions, the Court is satisfied that the
Company's interpretation of the disciplinary procedure is correct.
The Court, accordingly, finds that the counselling stage is not
part of the disciplinary procedure.
~
Signed on behalf of the Labour Court
Evelyn Owens
12th February, 1996 -------------
M.K./U.S. Chairman
NOTE:
ENQUIRIES CONCERNING THIS RECOMMENDATION SHOULD BE ADDRESSED TO
MR. MICHAEL KEEGAN, COURT SECRETARY.