FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DONEGAL HEALTH CARE LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR34/00/JH.
BACKGROUND:
2. The dispute concerns one worker who, as of the 29th November, 1999, had been transferred to the Company's assembly area due to a requirement to balance production. On 1st December, 1999, the worker was given a 'Target Sheet' by a trainer colleague, which he did not accept, throwing it in the bin. Following the incident and a number of exchanges with the team leader, the Company carried out an investigation, arising from which a final written warning and a 2-day unpaid suspension was imposed on the worker. The worker objected to the disciplinary action on the grounds that the entire incident was a joke which had been the subject of some banter between all concerned on previous days. The worker claimed that his reaction to the team leader was due to the confrontational attitude of the latter when calling the worker into his office. The Union, on behalf of the worker, disputed certain matters regarding the conduct of the investigation.
The Company rejected the contention that the worker was joking when refusing to accept the target sheets. The Company also had serious difficulty with the responses given by the worker and his attitude when questioned by the team leader. The dispute was the subject of an investigation by a Rights Commissioner who concluded, as follows:-
- This was an event which got out of hand. The worker may genuinely have been continuing the amicable exchanges of previous days, but this was not evidenced in his response to the team leader. It was at that point that the worker could have defused the situation but made no effort to do so. In the circumstances, the Company was correct to impose disciplinary action. However, given the background and that this was a one-off event, unlikely to re-occur, and that the Company representatives did offer to replace the two days' unpaid suspension with a two-day paid suspension, I consider that some moderation in the discipline is warranted.
The Rights Commissioner, on the 5th April, 2000, recommended as follows:-
I recommend that the final written warning cease to have effect, with effect from the end of April, 2000, provided there have been no further difficulties from the worker's performance or co-operation in the intervening period. Furthermore, as originally offered by the Company, the suspension should be for the two-day period in the previous week and the payment for the unpaid suspension for two days be restored.
On the 3rd May, 2000, the Rights Commissioner clarified to the Company that the Recommendation should be clarified on the basis that the payment for the 2-day unpaid suspension should be restored.
The Company appealed the Recommendation, to the Labour Court, on the 8th May, 2000. The Court heard the appeal, in Letterkenny, on the 12th October, 2000.
COMPANY'S ARGUMENTS:
3. 1. The use of the Target sheet was not something new but was regular and accepted. The worker had been a trainer and was a shop steward should have known better as to how to conduct himself in such matters. At the very least, he should have complied with the team leader's instruction under protest.
2. The worker was afforded opportunities to remove the Target Sheet from the bin and apologise for his actions. He spurned those opportunities and deflected from his own responsibility for his conduct by suggesting that the entire affair was a result of joking that had been going on for a number of days.
3. It was apparent, during the Company's investigation, that the worker harboured some residual grievances in relation to his unsuccessful candidacy for the Team Leader position.
4. The Company did not act in any manner to pre-determine the outcome of the investigation. While the Company had prepared a position statement for the meeting of 6th December, that document simply provided guidance for the Company, and it was not used until the worker produced his own statement, at the fourth time of asking.
5. The Company acted correctly in taking the decision it did with regard to the 2-day period of suspension without pay and the issue of a final warning, given the effrontery of the worker towards his Team Leader in what was a reasonable workplace situation.
6. The Rights Commissioner's treatment of the two days' suspension is not at all justified. The worker was originally suspended, with pay, for two days to allow for the matter to be investigated. The Company's subsequent offer to allow the first two days' paid suspension to stand as unpaid suspension, given that at the time the worker had not in fact received payment for those days, would have avoided the need for further days of suspension. Following rejection of the Company's offer, the worker was paid for those two days. The effect of the Company's offer was to ensure that there were only two days' suspension without pay whereas a possible interpretation of the Recommendation is that the worker, having received the initial two days' paid suspension, should, in addition, have a further two days' pay for the second period of suspension restored to him.
UNION'S ARGUMENTS:
4. 1. All parties to the incident were joking about the Target Sheets for several days before. When the worker put the Target Sheet in the bin, he was only joking and he removed it shortly afterwards. It is not unusual in the workplace for the employees to joke and make comments in jest.
2. The worker did not intend to cause any offence to his trainer, and he did not believe he had done so. On the 1st December 1999, he was unable to apologise to his trainer as he finished his shift at 8.00 p.m. However he had already offered to apologise to his trainer for any offence caused. The Company, at the Rights Commissioner's hearing, claimed that the worker had not offered to apologise to his team leader but he was never actually asked to apologise to him.
3. Suspension without pay for two days and a final written warning is a very severe punishment for a joke that went wrong, but was, unfortunately, taken seriously.
4. The Company has stated that it was concerned that the worker stated that he would not take orders from his team leader, or anyone else, and that he was suspended for non-compliance with an instruction. The worker has taken instructions from his supervisor before, and continues to do so. It was the manner and language of the team leader that the worker found offensive and unreasonable. Additionally, he was not given a chance to say that the Target Sheet had already been removed, by him, from the bin.
5. At the disciplinary hearing, the worker's response to the complaints against him was not taken into account prior to the Company's making its decision. It would not have been possible for the Company to consider his statement in such a short period of time. the Company is clearly in breach of the Code of Practice as the disciplinary decision was already made prior to the worker's response to the allegations being taken into account. the worker, accordingly, was denied fair procedures and natural justice.
DECISION:
The Court, having considered the written and oral submissions made by the parties, upholds the Company's position in relation to its disciplinary action.
The appeal is, therefore, successful and the Rights Commissioner's Recommendation rejected.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
24th October, 2000______________________
MK/MKChairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.