FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GROVE TURKEYS - AND - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Appeal by the Union against Rights Commissioner's Recommendation No.203/98
BACKGROUND:
2. The appeal concerns a worker (also a shop steward) who was suspended without pay for two weeks and transferred to another department, following an incident whereby he refused to comply with an instruction from his Supervisor. The Union claimed that the worker was unfairly treated and referred the dispute to a Rights Commissioner for investigation. On the 26th June, 1998, the Right Commissioner issued her recommendation as follows:
"I recommend that the case brought on behalf of the worker should fail. I further recommend that the Union in light of the information provided at the hearing on another unconnected incident which occurred in recent weeks should caution the worker very clearly about his future conduct in light of the nature of the warning on his file."
(The worker was named in the Right's Commissioner's Recommendation.)
On the 3rd July, 1998, the Union appealed the recommendation to the Labour Court. The Court heard the appeal in Cavan on the 11th November, 1998.
UNION'S ARGUMENTS:
1. As well as suspending the worker for two weeks without pay, the Company transferred the worker from the killing line to another department resulting in a substantial loss of pay. The Company also withdrew its recognition of the worker as an elected shop steward.
2. If the worker handled the situation poorly on the date in question and did not properly exercise the option open to him, the supervisor was equally at fault in not handling the situation in a better manner. Natural justice would determine that if both men equally handled the situation badly, they should equally be cautioned as to their future behaviour and required to approach matters in a reasonable and professional manner in view of their responsibilities.
3. When the worker reported to the factory early on the Monday morning he did so to update fellow workers on the killing line, not to incite them. Poor supervision, caused the 40 minute late start by the killing line workers and not any action of the claimant.
4. The Union does not accept the conclusion that the Company's action was inevitable, rather their decision was convenient and afforded them the opportunity to deal with the primary incident between the supervisor and the shop steward.
5. The worker is not appealing the two weeks loss of pay imposed. He should however, be compensated for his pay loss from 24th March, 1998 and he should also be re-instated to the killing line.
6. The Union challenges the Company's intent to de-recognise the worker's elected position as shop steward representing the killing line workers.
COMPANY'S ARGUMENTS:
1. Following the worker's refusal to comply with the supervisor's instruction on Friday, 6th March, 1998 he was instructed to report to reception at normal starting time 8.00 a.m. on the following Monday to meet with the plant manager. The worker arrived at the factory at 7.20 a.m. and elicited support from other workers for his meeting with the plant manager. The worker incited a number of others not to start work at 8.00 a.m. (normal start time), as a result work on the killing line commenced 40 minutes late.
2. Following the meeting with the plant manager the worker was suspended on pay pending the investigation and disciplinary meeting of 11th March, 1998.
3. The worker's behaviour on these two occasions constituted very serious misconduct and he was unable to offer any justification for his actions. Allegations of harassment which he made against the supervisor were unfounded and unsubstantiated. Given the seriousness of the worker's misconduct Management had little alternative but to consider his dismissal. Except for the strong pleas for mitigation made on the worker's behalf by his Union his dismissal would have ensued.
4. After Management gave considerable consideration to the worker's case he was issued with a two week suspension without pay in accordance with agreed disciplinary procedure. Given the worker's demonstrated contempt for his supervisor, Management had no alternative but to transfer him to another department. This is normal practice in the Company in accordance with Clause 7 of the House Agreement.
5. Because of his total disregard for agreed procedures and his clear defiance of the integral terms and the purpose of the Collective Agreements, Management cannot accept the worker as a suitable person to represent and negotiate on behalf of workers. Furthermore, another incident occurred in early June, 1998, when the worker was excused from work one morning, but failed to return to work in the afternoon.
6. The Company accepts the Right's Commissioner's recommendation as being reasonable in the circumstances and requests the Court to uphold it.
DECISION:
Having given careful consideration to this matter the Court upholds the Rights Commissioner's recommendation as the most appropriate way to resolve this issue, and thereby rejects the Union's appeal.
In addition, the Court notes the company's concern regarding the shop steward's behaviour in this incident and understands their reservation regarding his continuing role as a shop steward. The Rights Commissioner dealt indirectly with this issue.
The Court recommends that this should be dealt with in accordance with the Department of Enterprise, Trade and Employment's Code of Practice on;
Duties and Responsibilities of Employee Representatives and the Protection and Facilities to be afforded them by their Employer :
Clause 9Where an employer considers that an employee representative has acted or is acting beyond the usual authority and functions of an employee representative as set out in paragraph 3 or in a manner which is damaging to the undertaking or establishment, the employer should, in the first instance, take the matter up with the employee representative concerned and failing satisfaction at that level with his/her trade union.
Signed on behalf of the Labour Court
Caroline Jenkinson
30th November, 1998______________________
TOD/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.