FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TWO-WAY FORWARDING AND LOGISTICS LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER REPRESENTED BY AUTOMOBILE GENERAL ENGINEERING & MECHANICAL OPERATIVE UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's recommendation IR9303/02/LM.
BACKGROUND:
2. The issue involves a worker who commenced employment with the Company as a Supervisor in 1997. On the 10th April, 2002 the worker availed of an extended lunch break. Following an investigatory meeting on the 11th April, 2002, the worker was placed on suspension with pay. A disciplinary meeting was held on the 17th April, 2002, which resulted in the worker receiving a written warning for a 12 month period, demotion to the position of General Operative on a reduced salary. The worker appealed the decision to the Company, but was unsuccessful. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 5th June, 2003, the Rights Commissioner issued her recommendation as follows:
“Having considered all the circumstances in this case and the written and oral evidence presented at the hearing, I find the sanctions imposed on the claimant were excessive and that demotion was not warranted.I recommend the claimant be paid the difference between the rate for supervisor and that of general operative from the date of demotion to the claimant's termination of his employment".
On the 11th July, 2003 the Company appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 20th November, 2003.
COMPANY'S ARGUMENTS:
3.1 The worker, by his actions showed a complete lack of care for the business of the Company. He completely breached the trust which the Company had in him.
2. He admitted that what he had done was wrong and did not constitute behaviour expected of a Supervisor. He had initially stated that he was gone for a half an hour and later agreed it was for over two hours. His failure to disclose this at the initial stage of the investigation added to the loss of trust in him by the Company.
3. The Company, believes their actions were justified. They felt they could not trust him in a supervisory position.
4. The Company reassured the worker that his final written warning would not be used as a means to dismiss him from the Company for a trivial reason, and stated he could be promoted at a future date.
5. The Company maintains the worker's actions warranted the sanction imposed.
UNION'S ARGUMENTS:
4.1 The Rights Commissioner in her deliberations found in favour of the worker, and stated that the sanctions imposed were excessive.
2. The worker was not allowed a representative at the meeting, he was allowed bring a colleague, but only as an observer.
3.The Union claims the position of trust and responsibility was not breached in any way by the worker returning late from lunch. He commenced work at approximately 07.00 and had not taken a break until lunch (14.00). He informed Management at the hearing that he was in contact with the warehouse at all times during his absence by mobile phone and the other Supervisors were aware of his whereabouts. He did not abandon his duties in any shape or form.
4. The Union claims that disciplinary procedures were not following correctly and the Company is in breach of their own procedures. In terms of proportionate penalties a once off issue of coming back late after lunch does not warrant demotion and reduction in pay.
DECISION:
Having considered the oral and written submissions of the parties the Court concurs with the Rights Commissioner that the sanctions imposed on the worker were excessive and that demotion was unwarranted. Accordingly, the Court upholds the Rights Commissioner's recommendation that the worker be paid the difference between the rate prior to his demotion and that of the general operative, from the date of demotion to the worker's termination of employment.
The employer's appeal fails. The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th_December, 2003______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.