FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CABLE & WIRELESS GLOBAL (REPRESENTED BY MASON, HAYES & CURRAN SOLICITORS -AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Alleged unfair disciplinary action.
BACKGROUND:
2. The dispute concerns one worker who alleges she received unfair disciplinary action. The worker commenced employment with the Company on the 6th of June, 2000. On the 8th of January,a number of workers were suspended as part of an investigation into e-mail and internet abuse. On the 10th of January 2001, the Company posted a letter saying that an investigation was ongoing regarding obscene, disgusting and pornographic material that had been found within the Company's e-mail/internet system. On the 12th of January 2001, the worker was suspended with pay.
On the 2nd of February, 2001, the worker was issued with a final written warning for misuse of the Company's e-mail system, this warning debarred her from applying for promotion/transfer for the duration of its lifespan. On the 5th of February, 2001, the worker returned to work. An appeal hearing was held on the 21st of February, 2001, and the worker expressed her concern that the investigation had not been carried out in a fair and equitable manner. On the 6th of March, 2001, the worker was advised that the decision on the final written warning stood and was told that there might be a discretionary review of the disciplinary action 6 months later.
The Company refused to attend at a Rights Commissioners hearing. The worker referred the case to the Labour Court on the 4th of July, 2001, under Section 20(1) of
the Industrial Relations Act, 1969 and agreed to be bound by the Court's recommendation. A Labour Court hearing took place in Galway on the 12th of September 2001.
WORKERS ARGUMENTS:
3. 1. The Company's disciplinary procedure states "whenever reasonable practicable employees will be given advice and guidance with a view to improvement before disciplinary action is taken." The worker was never warned or spoken to about excessive texting or personal computer usage.
2. The procedures states that where possible relevant evidence will be made available to the employee in advance. Adequate time was not given to the worker before the appeal hearing.
3. The Appeals procedure denies the individual the right of external referral and goes against the spirit and intent of S.I. 146 of 2000 - (Code of Practice on Grievance and Disciplinary procedures).
4. S.I. 146 recommends that in general the steps in any procedure would be progressive, in this instance the Company moved directly to a final written warning.
5. The e-mail clip was sent by the worker to only one staff member who did not find it offensive and there was a warning attached saying that its contents may be offensive to others.
6. The punishment does not fit the crime, the disciplinary action was unjust and severe in the extreme.
COMPANY'S ARGUMENTS:
4. 1. There is no obligation on an employer to participate in a Rights Commissioner investigation under the Industrial Relations Act 1969.
2. The Company's actions were entirely justified and proportionate.
3. The Company followed an objectively fair procedure in reaching its decision to impose a final written warning.
4. It is the Company's position that the complaint before the Court is entirely without merit.
5. If the employee had received a verbal warning, the same exclusions would have applied.
6. The final written warning was imposed initially for 12 months, however, in common with a number of other employees who were disciplined, the employer decided to review all warnings after a period of 6 months.
RECOMMENDATION:
The Court having viewed the video evidence and having considered the written and oral submission is of the view that in the particular circumstances of this case, the offence committed warrants a lesser sanction than a final written warning and accordingly recommends that this final warning should be removed and replaced by a written warning.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th October, 2001______________________
HMCD/CCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Helena McDermott, Court Secretary.