FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CORPORATION - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's recommendation No. 683/97.
BACKGROUND:
2. The appeal is on behalf of a general operative who has been employed by the Corporation for 19 years. On the 4th of November, 1996, following a dispute with the Assistant Depot Inspector concerning overtime, the worker placed an unofficial picket at the Davitt Road depot for approximately fifteen minutes. Following a disciplinary interview the Divisional Engineer placed the worker on special leave without pay with effect from the 7th to the 20th of January, 1997, and recommended his dismissal. His recommendation was appealed to the Administrative Officer and to the Principal Officer, Personnel, who both endorsed the recommendation for dismissal. The worker's final appeal was to the Personnel Officer who did not uphold the recommendation for dismissal, but imposed the following disciplinary action:-
- The worker to continue on special leave without pay until the 4th of August, 1997.
- The worker to submit a medical certificate stating his fitness to resume work on the 5th of August, 1997, and his ability to carry out all of his duties. The Corporation to reserve its right to seek a second medical opinion.
- The worker to commence two years probation effective from the 5th of August, 1997, and to be removed from the benefits of the Sick Pay Scheme for two years from the same date.
- The worker to be issued with a final warning and required to comply with all aspects of his contract of employment. Any failure to comply to result in immediate proceedings to secure his dismissal.
The Personnel Officer's decision was appealed to a Rights Commissioner for investigation. His recommendation, which issued on the 29th of January, 1998, amended the disciplinary action as follows:-
"All other elements to stand but (i) final written warning to be removed after 12 months and replaced by a written warning also to have a life of 12 months (ii) removal from Sick Pay Scheme to apply for 18 months".
On the 3rd of March, 1998, the Union appealed the Rights Commissioner's recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 28th of April, 1998.
UNION'S ARGUMENTS:
3. 1. Although the Union does not condone the worker's 15 minute protest on the 4th of November, 1996, a picket was not placed on the premises. The worker concerned has been treated unreasonably by local management over a period of time which culminated in his total frustration on that day. Previously Personnel has acknowledged that there have been difficulties at this depot with local management.
2. It was unfair to suspend the worker for an initial period of two weeks and to then keep him on indefinite suspension until the Personnel Officer's decision on the 16th of May, 1997. He should have been returned to work pending the appeals procedure being exhausted.
3. The imposition of a two year probation period and his removal from the Sick Pay Scheme have been a most extreme punishment for the worker's indiscretion on the 4th of November, 1996. The initial two week suspension and a warning should have been the only discipline imposed.
CORPORATION'S ARGUMENTS:
4. 1. The Corporation cannot countenance in any circumstances the type of action taken by the worker on the 4th of November, 1996, which resulted in major disruption to the scheduling of operations for two major depots.
2. The worker's employment record in recent years has been most unsatisfactory. He has previously received a number of warnings including a final written warning in March, 1996, which he accepted.
3. In July, 1996, the worker was warned about his absenteeism and his conduct generally. A recommendation was made to remove him from the Sick Pay Scheme but he was given one final chance to improve his performance.
4. The worker was fortunate not to have been dismissed as a result of his actions. Although a prima-facie case for dismissal existed the Personnel Officer exercised leniency in order to ensure some sort of viable future for the worker.
DECISION:
Having regard to the worker's recent employment record, the Court considers the decision of the Corporation (as modified by the Rights Commissioner) to be a reasonable and compassionate response in the circumstances of this case.
It is hoped that this will be appreciated by the worker and that he will use this final opportunity afforded him to realise his full potential within the employment of the Corporation.
The appeal is dismissed and the recommendation of the Rights Commissioner upheld.
Signed on behalf of the Labour Court
Kevin Duffy
29th May, 1998______________________
D.G./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.