FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CADBURY IRELAND LIMITED - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR2692/00/JH.
BACKGROUND:
2. The appeal concerns a Company decision to impose a written warning on 10 night shift production operatives who engaged on unofficial industrial action, on the 3rd August, 2001. The Unions claimed that the Company's action was too severe and that, in the circumstances, a verbal warning would have been sufficient. The Company rejected the Unions' claim. The dispute was referred to a Rights Commissioner for investigation. On the 24th January, 2001 the Rights Commissioner issued her recommendation as follows:-
"I do not recommend concession of the Unions' claim, but I do recommend that the Management ensure that the commitment given regarding the availability of a senior manager is complied with to a greater degree than on this occasion."
On the 19th February, 2001 the Unions appealed the recommendation to the Labour Court. The Court heard the appeal on the 10th April, 2001.
UNIONS' ARGUMENTS:
3. 1. The workers concerned accept that they were liable for disciplinary action for engaging in unofficial action, however, they feel that a verbal warning should be issued. In this context, the Company, in 1998, sought a written warning for approximately 20 workers engaged in similar action but reduced it to a verbal warning.
2. In two other cases where the Company proposed written warnings, it did not pursue the matter and no warnings were issued. The Company's insistence that a written warning should apply is, therefore, a disproportionate response with very serious consequences for the claimants.
3. The action need not have taken place if the Company had adhered to practice and agreements by invoking the Peace Agreement and ensuring the availability of a Plant Manager in accordance with Company stated policy. This was particularly important on this occasion in view of the fact that holidays commenced immediately after the shift. The Company failure in this respect should be accepted, at the very least, as a mitigating factor when determining the appropriate level of disciplinary action.
COMPANY'S ARGUMENTS:
4. 1. Unofficial industrial action has been a very significant problem for the Company. It has explained to the Unions the very serious consequences of unofficial industrial action and the harder line the Company was going to have to take to prevent it happening. There have been five unofficial disputes since 1996. In 1998, in one incident the Company proposed a written warning but reduced it to a verbal warning. In the other two cases, the Company proposed and informed the parties involved, that they would be getting written warnings. These warnings were subsequently disputed but never progressed through procedure. In two cases earlier this year the Company proposed final written warnings because it believed there were no mitigating circumstances in either case. The final warning was accepted in one case and disputed in the other case. The second case was referred to a Rights Commissioner who upheld the final warning. The
recommendation was appealed to the Labour Court and the Court upheld the final warning.
2. There are sufficient procedures in place to ensure that grievances are dealt with adequately. There is no basis for unofficial action to take place. It is essential that this is clearly understood and will not be tolerated.
3. The proposed warning only relates to a repeat of this type of conduct. Whilst it does affect promotional opportunities for 9 months it should not have any other disciplinary consequences if workers do not act in this manner again.
DECISION:
Having carefully considered the submissions of the parties to this appeal the Court is satisfied that the disciplinary sanction imposed in this case was reasonable in all the circumstances.
The Court concurs with the conclusions and recommendation of the Rights Commissioner. The Recommendation is upheld and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
24th April, 2001______________________
TOD/BRDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.