FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CORK CORPORATION - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal by the Corporation against Rights Commissioner's Recommendation No. IR. 574/98.
BACKGROUND:
2. The appeal concerns a worker with fifteen years service who is employed as a production attendant at the Corporation's waterworks department for the past ten years. On the 16th of April, 1997, at approximately 4.30 pm, the worker received instructions from his foreman to carry out certain duties. Management stated that the worker did not carry out these duties properly and was therefore, deducted half an hour's pay. The Union claimed that the worker had completed the tasks in a proper manner and should be paid. The dispute was referred to a Rights Commissioner for investigation. On the 23rd of October, 1998, the Rights Commissioner issued his recommendation as follows:
"In the circumstances, I therefore, recommend that Cork Corporation should pay the worker for the half hour as claimed by SIPTU."
(The worker was named in the Rights Commissioner's recommendation.)
On the 24th of November, 1998, the Corporation appealed the recommendation to the Labour Court. The Court heard the appeal in Cork on the 19th of May, 1999.
CORPORATION'S ARGUMENTS:
3. 1. On the day in question the claimant was assigned to the duty of clearing briars and scrub from a portion of waterworks' land. This duty is one normally undertaken by production attendants. At approximately 4.30 pm he approached the production foreman, complained that he was tired and asked to be assigned to less arduous duties for the balance of the day. The foreman agreed, and instructed the worker to hose down settlement tanks. At quitting time the foreman asked the worker if he had undertaken the tasks and was told they were done. The foreman was not satisfied, and invited the worker to "carry out the work or be docked". The worker refused and told the foreman to "dock" him.
2. Prior to discussing the issue with the worker the foreman had inspected the area. He found no evidence whatsoever that the tanks had been hosed down. The area was completely dry (as was the day) and the hose was also dry. The Corporation is satisfied that the work was not carried out.
3. It is traditional to "dock" workers who fail to attend for work or, who when in attendance refuse or fail to carry out normal duties. The effect of the Rights Commissioner's recommendation is to supplant the most typical form of disciplinary action within the Corporation. If every minor case where "docking" is the traditional punishment is now to become a disciplinary issue then the Disciplinary and Grievance Procedure will become overburdened and unworkable.
UNION'S ARGUMENTS:
4. 1. On the day in question the worker was instructed to go to the tanks and hose them down. The instruction was give to him within the last half hour of finishing time. No specific instruction was issued in relation to which tank he was to hose down. The worker did as he was instructed and carried out the task.
2. The worker was approached by the foreman and requested to go and look at the tank. The worker indicated that he was unable to do so, as his finishing time had arrived. The foreman informed the worker of his intention to deduct half an hour's pay on the basis that the work was not done.
3. The worker was given an instruction and he carried it out. There is no valid reason for the deduction. The worker did not advise the foreman to "dock" him. The unilateral action by the supervisor in deducting the money is not acceptable. The Rights Commissioner's recommendation is that the Corporation should pay the half hour as claimed. The Union has accepted the recommendation and requests the Court to uphold it.
DECISION:
The Court considered the written and oral submissions made by the parties. The Rights Commissioner states that he was not satisfied that the employee adequately performed the duties given to him that evening by his foreman.
While accepting that the issue might have been better handled through the disciplinary procedure, the Court is satisfied that the foreman could not return an employee for overtime payment for work not done.
The Court does not recommend payment to this employee in this case and, therefore, upholds the appeal and rejects the Rights Commissioner's recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
11th June, 1999.______________________
TOD/BCChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.