FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - COMMUNICATIONS WORKERS' UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal against Rights Commissioner's Recommendation No. DC 82/96.
BACKGROUND:
2. The appeal concerns a claim by the Union for payment of salary to staff for a period during which they were removed from the payroll. The issue involves 24 workers in the Dublin Mail Centre (DMC) who, on the 23rd of January, 1996, were removed from the payroll by management, on the grounds that they allegedly refused to carry out legitimate instructions and attend to normal work. The Union claims that the workers were unfairly removed from the payroll and that management had introduced an additional layer of supervision which staff regarded as oppressive. The Union considered the Company to be in breach of the spirit of the then ongoing discussions at the Labour Relations Commission (LRC), concerning a range of issues, and determined that workers should work according to their duty content. (When they refused to move to other locations, as instructed, they were removed from the payroll, although they continued working the appropriate duties for which they had signed). The dispute was the subject of discussions at the LRC on the 25th and 26th of January, 1996, arising from which proposals emanated which allowed a normal resumption of work, on the 26th.
Included in the proposals was that the question of payment claimed to be due to staff removed from the payroll would be referred to a Rights Commissioner for adjudication and that his findings would be accepted by both sides.
Following investigation of the matter by a Rights Commissioner, Recommendation No. DC82/96 issued. The Rights Commissioner found and recommended as follows:
"Having considered all the facts, I am satisfied that this dispute was precipitated by the Union's representatives, on the basis of what I would describe as the flimsiest of provocations.
The problem was then compounded by Management, who having removed the claimants from the payroll which one would normally interpret as being a suspension from duty, allowed them to remain on the premises, thereby providing them with an opportunity for this claim for payment "for having been at work".
I am also satisfied that the local Union representatives were fully aware of but had no regard whatsoever for the provisions of the Industrial Relations Act 1990 in the progression of their actions, at the time.
My assessment of blame therefore for the dispute is as follows:-
The Union - 80% The Company - 20%
Consequently if there was any justification for payment simply on the grounds of attendance at the work place any such financial responsibility should be apportioned on that basis. However as I am convinced that the Union would neither accept or indeed meet any liability in that regard, I recommend that An Post for their part donate an ex-gratia lump sum of £250 to a suitable charity e.g. St. Vincent De Paul, payment of which should be regarded as a final resolution of this ridiculous debacle".
The Recommendation was appealed by the Union on the 16th of September, 1996, in accordance with Section 13(9) of the Industrial Relations Act, 1990. The Court heard the appeal on the 31st of October, 1996.
UNION'S ARGUMENTS:
3. 1. The recommendation misrepresents what actually happened and, therefore, comes to a seriously flawed conclusion. The Union rejects the statement "...I am satisfied that this dispute was precipitated by Union's representatives, on the basis of what I would describe as the flimsiest of provocations". It is obvious that the Rights Commissioner recognises that there was provocation from the Company but to describe it as flimsy is offensive to the members of the CWU. The reality is that the Management introduced an extra level of supervision which could only be described as oppressive. The LRC clearly stated in its proposals that, although it did not wish to make a judgement on the rights and wrongs of the dispute, it did state that there shall be an immediate resumption of normal working under normal supervision for the duration of the cooling off period.
2. In his findings and recommendations the Rights Commissioner also states that the Union representatives were fully aware but had no regard whatsoever for the provisions of the Industrial Relations Act 1990. That statement is unacceptable. Local representatives in the DMC were in continual communication with Union headquarters and had briefed the General Secretary of the situation. The General Secretary and the Executive were aware of the difficulties in the DMC regarding the extra supervision. The LRC recommendations recognised that the Company introduced a level of supervision that was not normal practice. The Union, at local level, instructed its members to take up their normal duty content as they had signed, in response to this extra supervision. There was no question of industrial action. For the Rights Commissioner to suggest that the Union's actions showed contempt for the Industrial Relations Act 1990, or that the Union acted without sanction from Union Headquarters, is unacceptable.
3. The accusation by the Company that the Union Branch was responsible for the delay of 150,000 items of mail is inaccurate, but in order for the Rights Commissioner to come to his conclusions, he must have accepted this to be the case.
4. The Rights Commissioner's statement that he was convinced that the Union would neither accept nor meet any liability in relation to financial payments on the basis of 80:20 liability, is rejected. At the Rights Commissioner Hearing, in private session, the Union side informed the Rights Commissioner that the local Branch had paid the monies owed to the 24 individuals. The Union was acting on the LRC proposals which entitled it to seek payment of monies withheld, at a hearing before a Rights Commissioner.
COMPANY'S ARGUMENTS:
4. 1. The Company's position on this matter - now as at the time of the Rights Commissioner hearing - is that the staff concerned were properly removed from the payroll for refusing to carry out legitimate instructions for attending to normal work.
2. The staff's refusal to carry out the instructions was in furtherance of industrial action which was taken without notice and was in breach of existing arrangements, the Company grievance procedures and the requirements of the Industrial Relations Act.
3. There is no reasonable justification for the staff to seek payment for the period of their removal from the payroll.
4. The matter has been fully heard and dealt with by the Rights Commissioner. In the absence of any new information there is no reason to change the findings and Recommendation.
5. Under the terms of the referral to the Rights Commissioner, it was agreed that both parties would accept his findings.
DECISION:
The Court, in considering the written and oral submissions made by the parties, was conscious that the LRC proposals, accepted by both parties, clearly stated that the Rights Commissioner's findings in this "should be accepted by both sides".
However, the Court, taking into account the circumstances surrounding this issue, agrees with the Rights Commissioner's proposal that a sum of money be paid to charity as a means of resolving this issue.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
11th November, 1996______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.