FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : APPLE COMPUTER LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal by the Union against Rights Commissioner's Recommendation No. RC702/97(2) concerning Pat Murphy.
BACKGROUND:
2. The appeal concerns a worker who has been employed by the Company for the past five and a half years, and is one of nine shop stewards at the Company's plant. On the 1st of May, 1997 a meeting was held in Dublin between officials of the Department of Enterprise and Employment and Union representatives and shop stewards. Arrangements were made with the Company's Human Resources Department to have all shop stewards released for the meeting and that they would travel on the 7.30 a.m. train from Cork. The claimant and a colleague (Mr. Wallace) had both inadvertently missed the early Cork - Dublin train on the morning in question. They decided to drive to Dublin. They were unable to find the venue of the meeting and had eventually arrived back in Cork at approximately 4.15 p.m. Management subsequently interviewed both employees about their non-attendance at the meeting in Dublin. By letter dated the 28th of May, 1997, the claimant and his colleague were both issued with Stage 3 or Final Written Warning under the disciplinary procedures. The Union claimed that the worker was unfairly treated and referred the issue to a Rights Commissioner for investigation. On the 4th of December, 1997 the Rights Commissioner issued his recommendation as follows:-
"In the circumstances, I therefore recommend that the Union's appeal
fails and that the disciplinary action set out in the Company's letter
to Mr. Murphy of 28th of May should stand in full."
On the 22nd of December, 1997 the Union appealed the recommendation to the Labour Court. The Court heard the appeal in Cork on the 11th of March, 1998.
UNION'S ARGUMENTS:
3. 1. The Company's action in issuing a final written warning was far too severe a penalty considering the circumstances. The worker concerned has over five years service and has never been on a disciplinary charge prior to this incident. The worker was charged with being absent from work, not reporting back to work, failing to advise management of non-attendance at the meeting and fraudulently claiming a day's wages, yet agreement had been reached with the Human Resources Department that all shop stewards would be released for the meeting. The worker concerned made every effort to attend the meeting. The worker concerned was due to finish his shift at 4.20 p.m. he did not arrive back in Cork until approximately 4.15 p.m. It would have been impossible for him to report back to work. The worker on being questioned by his supervisor the following morning (May 2nd) advised him that he did not attend the meeting. The worker did not claim wages in respect of the 1st of May, even though he was at a substantial loss.
2. The Union found certain comments made to the claimant by his supervisor during the investigation concerning the other worker very disturbing (details supplied to the Court).
3. The worker co-operated fully with management in their investigation. The Union accepts that while some discrepancies do exist in the workers' individual accounts of events, these arise as a result of one shop steward having a very good recollection of events of the 1st of May while his travelling companion has not.
4. Neither the worker nor his colleague were absent from work without leave on the 1st of May. Every effort was made by them to attend the meeting in Dublin. No pay was claimed by the worker in respect of the 1st of May.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned had leave of absence with pay. He did not inform the Company of the fact that he did not attend the meeting held in the Department of Enterprise and Employment in Dublin.
2. When the issues relating to this non-attendance at the meeting were put to the worker during the Company's investigation into the matter the worker had answered some questions about the events of the 1st of May in a reasonable manner, however, other answers that he had given were completely unsatisfactory (details supplied to the Court).
3. There were differences between the worker's account of the events of the 1st of May and that of his colleague. The worker had no explanation for the discrepancies between the two accounts.
4. The Company carried out an internal investigation regarding the comments which had allegedly been made to the claimant and could find no evidence to support the allegations.
4. The Company carried out a thorough investigation of the events of the 1st of May and treated the worker in a fair and reasonable manner in accordance with agreed disciplinary procedures. The Company's action in issuing the final written warning was fully justified. Based on the disciplinary procedure in the Company a 'clean slate' practice, subject to behavioural improvements, operates over a 12 month period. The Company requests the Court to uphold the Rights Commissioner's recommendation.
DECISION:
The Court has given careful consideration to the forceful arguments made by the Union in support of this appeal.
However, the Court cannot accept the veracity of the Workers' account of what occurred on the date in question. Their lack of candour in response to the initial enquiries of management and at the internal disciplinary investigation, significantly aggravated what would otherwise have been regarded as less serious misconduct.
Having considered the evidence and submissions presented the Court feels that on the balance of probabilities, Mr. Murphy was slightly less culpable than Mr. Wallace. In this case the warning should be reduced to a written, rather than a final written warning. In the case of Mr. Wallace the imposition of a final written warning is fully justified. Furthermore, there is no basis whatever on which payment is respect of the day in question could justifiably be claimed in either case.
With regard to the withdrawal of release facilities for Union related business, the Court has some concern as to the appropriateness of such a sanction being imposed by the Company.
The workers were deputed to attend the meeting in Dublin, as representatives of their fellow union members. If their failure to attend added a further dimension of misconduct, relating to the performance of their duties as Shop Stewards, it should more properly be regarded as a matter which the Union might deal with under its own rules and procedures. Moreover, it is noted that the Company disciplinary code does not provide for this form of sanction.
The Court notes, however, the assurance given by the Company that it is not intended to interfere with or restrict the workers in the exercise of their functions as Shop Stewards internal to the employment. On that basis the Court does not propose any change to the Company's decision in the circumstances of this case.
The findings and recommendation of the Rights Commissioner should be varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
2nd April, 1998______________________
T.O'D./D.T.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.