FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ATLAS ALUMINIUM 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 Rorke |
1. Appeal of Rights Commissioner's Recommendation No. 101/98 concerning written warnings issued to two workers.
BACKGROUND:
2. Atlas Aluminium Limited is a Limerick-based Irish Company, manufacturing aluminium and zinc die-casting products. It was established in 1991 and employs approximately two hundred and forty (240) employees.
The dispute before the Court concerns the Union's appeal on behalf of two employees to have first written warnings rescinded. The warnings were issued following an incident which occurred in the Foundry Department on the 25th of November, 1997. The incident which was observed by management involved a forklift operator pouring molten aluminium into a pot while a foundry operative was standing in an unsafe position. The Company claims that the incident was a serious offence, in direct contravention of the Company/Union Agreement on Health and Safety. Both warnings were appealed internally following which the Company upheld its decision to issue the warnings.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"Based on the evidence before me, I am satisfied that the
disciplinary action imposed on the two employees was reasonable
in the circumstances. Given the obvious seriousness of safety
issues, and also the six-month duration of such warnings, I do not
see any reason to remove or dilute the punishments imposed
by the Company.
However, there would appear to be some validity in the criticisms
made at the Hearing of the consistency of the Company's
approach to safety issues. It seems to me that the Company
should, as a matter of priority, increase its efforts in this area and
seek to dispel any confusion or ambiguity that might currently
exist regarding these issues. I gather from comments made at
the Hearing that this process has already commenced and I
note the Union's commitment to assist in the ongoing development
of clearer and better safety procedures which are obviously in the
interests of all concerned.
I therefore recommend that SIPTU's appeals against the first
written warnings fail and that the Company should continue to
improve its safety procedures, as above."
The Rights Commissioner's recommendation was appealed by the Union to the Labour Court on the 9th of June, 1998 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Limerick on the 23rd of September, 1998.
UNION'S ARGUMENTS:
3. 1. The Company has a history of serious health and safety problems. As a result of the Company's neglect of such matters, the Union requested the intervention of the Health and Safety Authority in 1994. An investigation carried out resulted in the issuing of six improvement notices in September, 1994 . One of these notices highlighted the Company's "failure to provide systems of work that are planned, organised, performed and maintained, so as to be as far as is reasonably practicable, safe and without risk to health."
2. The inconsistencies in the approach of the Company is reflected in an incident which occurred two weeks after the events of the 25th of November, 1997. During a calibration check on one of the new westhoven machines, management deemed it necessary to pour metal into a westhoven pot while an operator stood less than four feet away carrying out a maintenance check. He was not wearing protective equipment. During the Rights Commissioner's investigation, the Company argued that this was done in a more controlled environment and did not pose a threat to the safety of the operator. This is strenuously contested. Two serious accidents in recent years have involved westhoven machines.
3. Since the incident took place, a mirror system has been installed on the A1 machine. Both workers have consistently argued throughout the appeal procedure, that, at the time the operative approached the pot, metal was not being poured. Both operators were conforming to the established safety procedures for the A1 machine, as they understood them.
4. The Union fails to understand why a matter regarded as gross misconduct would not have been addressed until a month after the incident had occurred. The operative did not receive his warning until the 7th of January, 1998, when it became clear that the Union would be pursuing the forklift operator's warning through grievance procedures.
5. The Company cannot be allowed to hide behind the disciplinary code when dealing with problems in relation to health and safety. The imposition of written warnings represents a clear deviation from the procedural agreement. Neither of the workers had warnings on file and were only subject to the imposition of a verbal warning for their alleged misconduct.
COMPANY'S ARGUMENTS:
4. 1. Given the nature of the Company's business, it is imperative that at all times management ensures that staff abide by and adhere to safe work practices and procedures. The Company has sought to promote this employment as a safe place to work through the operation of expressly stated safety procedures and the introduction of a safety bonus. The actions of both employees in flouting safety procedures and regulations left management with no alternative but to take appropriate disciplinary action against them for engaging in unsafe work practices.
2. The consequences of what happened on the 25th of November, 1997 within the Foundry Department could have resulted in serious injuries, to an employee within the Company. No employer can countenance the toleration of such unsafe practices which could result in serious/life threatening injuries. There is a general obligation on an employer to take care of his employees safety. This entails the provision of competent staff and the provision of a safe workplace.
3. Clause 26 of the Company/Union agreement clearly endorses the Company's right to administer disciplinary action against any employee(s) who "refuse to obey rules relating to safety." Clause 26 of the Company/Union agreement clearly states that refusing to obey rules relating to safety constitutes serious misconduct for which an employee may be given immediate suspension or dismissal.
The Rights Commissioner upheld the Company's position to issue first written warnings. In his findings he stated that he was satisfied that the disciplinary action imposed on the two employees was reasonable in the circumstances. Given the obvious seriousness of safety issues in question and also the six month duration of the first written warnings, he did not see any reason to remove or rescind the disciplinary measures taken by the Company in this instance.
5. The Company was fully justified in issuing these warnings, and rejecting the Union's appeal to have them rescinded. Unsafe work practices, particularly in a Foundry where molten metal is transported and poured for die casting machines at high temperatures, cannot be condoned or tolerated under any circumstances in any employment.
DECISION:
The Court having considered the written and oral submissions finds no reason to change the Rights Commissioner's Recommendation.
The Court, therefore, upholds the Rights Commissioner's Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
6th October, 1998______________________
F.B./D.T.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.