FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN DRY DOCK LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGrath Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Appeal against Rights Commissioner's Recommendation No. 299/97.
BACKGROUND:
2. The Company is a dry dock and ship repair operation which was set up in Dublin Port in 1995, taking on facilities previously utilised by a number of companies which had gone into liquidation.
The dispute concerns 4 workers, 3 of whom have sought compensation for loss of earnings and one of whom, has sought reinstatement on the grounds that his dismissal was unfair. The 4 were on a list of casual general operatives called on to carry out a "rigging" assignment. With the support of the Union they sought the craft rate for the assignment, based on custom and practice in the enterprise and the established position in a range of other employments. Following a number of contacts between the parties' representatives the 4 were given to understand that the disputed issues had been resolved and they should report for work on the following day. On reporting for work, they were informed that regardless of what understanding they had, they would not be receiving the craft rate for what management considered to be semi-skilled work.
Discussions between the parties became agitated and the use of "industrial language" was perpetrated by both sides. The Union, however, has denied the use of particularly offensive remarks attributed to the worker who was subsequently dismissed on the grounds of what management described as gross insubordination and offensive behaviour. The Union claims that all 4 workers were actually dismissed. The Company's position is that only one of the 4 was dismissed.
The Union is seeking compensation for loss of earnings for 3 of the 4, and re-instatement for the dismissed worker. The dispute was investigated by a Rights Commissioner who concluded that all 4 had been dismissed, in the heat of the moment, and that 3 had been, subsequently, offered work while the dismissal of the 4th worker was confirmed.
The Rights Commissioner's specific findings and conclusions were that:-
(a) because of an unnecessary and irresponsible dispute to which both sides contributed in varying degrees the work was lost to the Company. Any claim for loss of earnings must, therefore, fail;
(b) while not minimising the seriousness of the dismissed worker's behaviour, his angry outburst might, in part, be explained by what he saw as a reneging on an agreement made with his Union on the previous day;
(c) in the light of three being returned to work it is difficult to avoid the conclusion that the dismissed worker was, in part, victimised by virtue of his representative role;
(d) his dismissal was unfair but that by his behaviour, he contributed to the position in which he finds himself;
(e) in all circumstances, I do not consider reinstatement/re-engagement to be appropriate responses. I propose instead the payment of £5,600 compensation.
The Recommendation was appealed by the Company, on the 14th of May, 1997, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 28th of August, 1997.
COMPANY'S ARGUMENTS:
3. 1. The dismissed worker's verbal assault on the Managing Director constituted gross insubordination and, as such, warranted dismissal for gross misconduct (details supplied to the Court).
2. The worker was not victimised in his position as spokesman but was dismissed for over-stepping the mark in that capacity by resorting to personally abusive remarks which are totally unacceptable under any circumstances.
3. Previous exchanges between management and employees were characterised by the tough environment that is acknowledged to exist in the docks but at no point had either side resorted to personal abuse.
4. The yard lost the contract for the rigging as a direct consequence of the behaviour of the worker and his colleagues. It could ill-afford to do so as a fledgling enterprise in a highly competitive industry where owners require the highest standards of quality and reliability and where time spent in dry dock is a major cost factor in getting repeat business.
UNION'S ARGUMENTS:
4. 1. The dismissed worker cannot be held responsible for the general scenario in which incidents like that which led to his dismissal were bound to happen.
2. The Company's claims in relation to specific comments attributed to the dismissed worker are rejected. Angry exchanges took place during which industrial language was used, which was not an unusual occurrence.
3. The Rights Commissioner took account of any contribution the dismissed worker made to the position in which he found himself and yet he felt that he had been victimised by virtue of his representative role and also that the dismissal had been unfair. Accordingly, the compensation award of £5,600 is reasonable.
DECISION:
The Court having considered all of the views expressed by the parties in their oral and written submissions finds no grounds have been adduced to warrant changing the recommendation of the Rights Commissioner.
Accordingly, the Court upholds the Rights Commissioner's recommendation and rejects the appeal of the Company.
Signed on behalf of the Labour Court
Tom McGrath
16th of September, 1997______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.