FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KOSTAL (IRELAND) LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation No. 786/96 concerning alleged unfair dismissal.
BACKGROUND:
2. Kostal (Ireland) Limited which was established in Abbeyfeale in 1981 manufactures electronic components for the automotive industry. A second plant established in Newcastle in January, 1994 is involved in the manufacture of sensor equipment, also used in the automotive industry. It employs approximately 1,100 workers.
The worker concerned commenced employment with the Company as a production operator in May, 1992. All employees record their hours of attendance by using a swipe card to clock in and out of work. From time to time employees work various forms of overtime, including early starts.
On the 13th of September, 1996 the worker arrived at 4.57 a.m. for work which she had intended to start at 3.30 a.m. She had forgotten her swipe card and could not locate her blue bonus sheet which she could have used as an alternative means of clocking-in. When entering her time of arrival on her manual attendance sheet and blue bonus form she inadvertently entered 3.30 a.m.
Following an investigation into the matter the worker was suspended with pay and following further investigation her employment was terminated on the 14th of October, 1996. The worker claims that she had been unfairly dismissed and referred the matter to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"Kostal has detailed written procedures for dealing with the recording of employees' attendance and the worker was fully aware of these. In addition, the falsification of time cards and other Company records is clearly specified in the Company/Union Agreement as an offence liable to lead to dismissal.
Based on all the evidence before me, and taking into account the somewhat unusual starting time involved, I have concluded that the Company acted both reasonably and in accordance with the appropriate procedures in dealing with this case.
In the circumstances, I recommend that the worker and her Union should accept that her dismissal from Kostal (Ireland) Limited was not unfair in the context of the Unfair Dismissals Acts, 1977 to 1993."
The worker was named in the Recommendation.
The Rights Commissioner's Recommendation was appealed by the worker to the Labour Court on the 19th of June, 1997 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal in Limerick on the 22nd of October, 1997.
UNION'S ARGUMENTS:
3. 1. The worker did not set out to deceive or defraud the Company in any way. The circumstances of being late for work coupled with forgetting her swipe card and the missing bonus sheet all contributed to the errors that took place.
2. The Company did not suffer any financial loss, nor was it ever going to suffer any loss as the bonus sheets involved had not been processed. On the morning in question the worker, on a number of occasions, sought to bring the error to the attention of a departmental supervisor before eventually succeeding in doing so.
3. Prior to the incident of the 13th of September, 1996 the worker had never received a formal, written or verbal warning of any nature from the Company.
4. The severity of the Rights Commissioner's Recommendation is far too harsh in all the circumstances of this case. The termination of employment should only be the final act when all other avenues have been fully exhausted. It is difficult to understand in the light of the worker's previous excellent record why dismissal should be the only option considered by the Company.
COMPANY'S ARGUMENTS:
4. 1. Normal daily calculations had been carried out on the worker's bonus sheet on the evening before the incident in question. There was no logical reason why the card should not be in its place at the time that the worker was due to check-in. There was no reason for anyone to interfere with the sheets between Thursday evening and Friday morning. Had the sheet been removed in error by another employee, this would have resulted in an entry on the sheet, which did not in fact occur.
2. The start time of the worker on the date in question was somewhat unusual. There is no record of a previous 3.30 start in the worker's case at any stage over a period from 1st April, 1996 to the date of her suspension on the 13th September, 1996. She had one 3.00 a.m. start on the 1st May 1996, a 3.49 a.m. start on the 1st August 1996 and 4.00 a.m. start on the 27th August 1996. All other early start times for the worker were later than 4.30 a.m. and generally in or about 5.00 a.m. As a reasonable employer, the Company cannot believe that 3.30 a.m. was entered by force of habit and can only conclude that it was deliberate.
3. The Company/Union Agreement outlines the Company's disciplinary procedures and Section 2.2 categorises breaches of conduct into four groups. Group D includes: "Falsifying vouchers, time cards, travellers or other Company records (includes clocking another employee's time card)". The corrective action outlined in the agreement for such breaches of conduct is "discharge". Moreover, all employees have been advised on a number of occasions by Company memoranda of the importance of clocking.
4. The falsification of time cards is clearly a dismissable offence in accordance with the Company Union Agreement to which SIPTU are party. Moreover, the worker's actions have led to an irretrievable breakdown in the bond of trust which is so central to the employment relationship. This is particularly so in an establishment employing 1109 employees. It is on this basis that the Company was left with no alternative but to dismiss the worker.
5. The Company has applied due process at all stages of this case. The worker was initially suspended with pay, and in accordance with the rules of natural justice was at all times afforded a right of representation as well as the full right of reply through her union. The Company conducted a thorough investigation and gave serious consideration to the explanations offered by the worker. However, she failed to submit any satisfactory explanation for her actions in falsifying time cards and bonus sheets.
DECISION:
The Court having considered carefully the submissions, written and oral made by the parties upholds the Rights Commissioner's Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
12th November, 1997______________________
F.B./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.