FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BOXMORE PLASTICS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGrath Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal by the Union against Rights Commissioner's Recommendation RC643/96.
BACKGROUND:
2. The Company manufactures blow moulded plastic containers and employs 200 workers. The appeal concerns a worker operating a machine on shift duty from 4.00 p.m. to 12.00 midnight. His duties included the inspection of PVC containers being produced from the moulding machine. On 28th May, 1996, the worker was approached by his supervisor who claimed that the worker was packing the product without proper inspection. The worker claimed that he was inspecting the product correctly. The Company claimed that the worker still failed to inspect the containers correctly. He was suspended with pay pending an investigation into the matter. Following an investigation the Company issued a final written warning and imposed a suspension for one week without pay . The Union claimed that the worker was unfairly treated. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 19th of June, 1997 the Rights Commissioner issued his recommendation as follows:-
"Despite the arguments advanced by the Union in relation to the nature of the inspection of the product concerned and the quality of the claimant's work. I am fairly satisfied that the incident that gave rise to the disciplinary sanctions, was an act of deliberate and wilful insubordination on the part of the worker.
The Company/Union agreement categorises "a refusal to carry and lawful instructions" as gross misconduct which will leave an employee liable to dismissal. Consequently, against that backdrop, I don't think the Company's action in the matter was all that unreasonable, and I therefore recommend that the worker's appeal against the weeks suspension and final written warning fails."
(The worker was named in the Rights Commissioner's recommendation).
On the 30th of June, 1997 the Union appealed the Rights Commissioner's recommendation to the Labour Court. The Court heard the appeal in Cavan on the 30th of October, 1997.
UNION'S ARGUMENTS:
3. 1. The worker did not refuse to carry out instructions from his supervisor. At all times he insisted that he had given the products a full inspection, and had rejected 18 faulty containers during the shift. In a subsequent investigation of many thousands of containers which were re-checked by the Company, no faulty container was found.
2. At the time the Company had not given any specific instructions on how the product should be checked. This was verified by all the operators who operated the particular machine. The worker agreed to carry out the inspection of containers in the manner required by the Company when he was shown the exact procedure for doing so.
3. The Company's claim, that the worker was not giving a full inspection, was based on the observations of the Managing Director who was observing the operation from a location which was some distance from the actual operation.
4. The Union contends that the one week's pay should be repaid to the worker and the final written warning be removed from his record.
COMPANY'S ARGUMENTS:
4. 1. It is essential that all containers being produced from the moulding machines be inspected to ensure they are up to the required customer standard. Failure to do so impacts on the Company's reliability and its image with the customer. At the time of the incident the Company was experiencing serious problems with the customer involved.
2. The supervisor approached the claimant and asked him several times to inspect all surfaces of the container properly. His response was that he had "quick eyes". He was urged by the supervisor to inspect the product properly but he again continued as before. He was made aware that his behaviour was leaving him liable to disciplinary action. Despite this the worker continued to refuse to inspect all surfaces of the container properly. This was a deliberate refusal to follow his manager's instructions. Under Section 24.1 of the Company/Union agreement this is an example of gross misconduct, which leaves an employee liable to dismissal.
3. The Company afforded all the rights of natural justice to the claimant. He was represented at the disciplinary meetings held with him and was informed of the issues being discussed. He was given an opportunity to respond to these issues and this response was considered by the Company before making a decision. The Company's decision was only taken after due consideration of all the matters involved.
4. Due to the seriousness of the worker's failure to inspect the containers properly and to follow his manager's instructions to do so, the Company had no option but to implement a final written warning and suspension without pay. The Company requests that the disciplinary action taken against the worker and the Rights Commissioner's recommendation be upheld.
DECISION:
The Court, having fully considered all of the issues raised by the parties in their oral and written submissions, finds the penalty imposed, given all the circumstances was somewhat harsh.
The Court decides the one week's suspension without pay should be reduced to two days. The Court notes that the term of the final warning has expired.
The Court so decides.
Signed on behalf of the Labour Court
Tom McGrath
6th November, 1997______________________
T.O'D./D.T.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.