FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MOFFETT ENGINEERING LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY AMICUS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation IR19310/04/JH.
BACKGROUND:
2. The appeal concerns a worker who commenced employment with the Company in April, 1997 in the post of welder/fabricator. He held the post of shop steward from early in 2003. The worker was dismissed in July, 2004 and the separate Rights Commissioner's recommendation in that case is under appeal from the Company at the Employment Appeals Tribunal. On the 23rd February, 2004 the Company's Health and Safety Manager arranged to meet an operative in relation to a health and safety matter. The meeting was scheduled for approximately 12.45 p.m. The claimant had attempted to attend the meeting as a witness or a representative if the need arose. The HS Manager contended that there was no need for the claimant to be present at such an investigation and advised him to return to his work station and rearranged the meeting for later in the day. The claimant again accompanied the operative to the meeting and a verbal altercation ensued between the claimant and the HS Manager. The HS Manager submitted a written complaint about the claimant's behaviour and following an internal investigation the claimant was issued with a Final Written Warning which was upheld following an appeal by the Union. The Union claimed that the claimant was unfairly treated and referred the issue to a Rights Commissioner for investigation. On the 3rd November, 2004 the Rights Commissioner issued her recommendation as follows:
Based on the submissions and for the reasons set out in the foregoing I find that the disciplinary sanction was merited. I recommend however, that the sanction be reduced to a written warning, particularly in light of the terms of the recommendation contained in UD 21975/04 that the worker will no longer act in a representative capacity at the company following his re-engagement.
(The worker was named in the Rights Commissioner's Recommendation).
On the 6th December, 2004 the Company appealed the recommendation to the Labour Court. The Court heard the appeal in Dundalk on the 6th May, 2005.
COMPANY'S ARGUMENTS:
3. 1. The claimant knowingly and persistently breached Company requirements in relation to representation entitlements upon which he had previously and specifically been briefed by the HR Manager regarding representation of individuals at a health and safety meeting. He hindered the investigation of an accident investigation and repeatedly refused to comply with a reasonable request of his manager to leave the operative and the HS Manager to meet alone, and for him to return to his work place.
2. The claimant instructed another employee not to cooperate with an investigation of an incident in the workplace the details of which management were then not fully aware. The claimant in the presence of another employee and witnessed by a supervisor made serious allegations about the integrity of the HS Manager and that of the Company in addressing health and safety issues. He also made a personal and unwarranted attack with derogatory remarks on the HS Manager.
3. The Company fully investigated the incident in accordance with the Disciplinary Code. It was the judgement of the investigating managers that the claimant should be sanctioned. In light of the fact that an existing warning was on record the investigating managers reached a correct judgement in awarding a Final Written Warning The decision was upheld on appeal. The Company considers such behaviour and the incident in question as warranting on its own the issue of a Final Written Warning notwithstanding previous recorded warnings.
UNION'S ARGUMENTS.
4. 1. The operative concerned specifically requested the claimant to accompany him to the meet with the HS Manager. The operative's request for the presence of the claimant was reasonable and in line with best practice. There was no justifiable reason for the Company's refusal to allow the claimant attend the meeting . The Union accepts that there was a strong verbal exchange between the claimant and the HS Manager because both felt their own view was the correct one. The claimant subsequently apologised to the HS Manager for any offence caused and made it clear no offence was intended. The HS Manager honourably accepted his apology. However the claimant was suspended from work and given a Final Written Warning. The claimant was allowed to return to work on 2nd March, 2004 and requested that prior to that he would formally apologise to the HS Manager which he did.
2. Management in its investigation took into consideration previous alleged incidents and informal complaints about which the claimant was unaware. Management took into consideration a previous written warning received by the claimant. He had requested an appeal form in relation to this and was advised by Management that the warning was withdrawn. Management now disowns this statement and declares that the warning is still in place and that the claimant realised this as he had appealed in writing. However, the Company has not produced the appeal form of the claimant nor has it given any explanation as to why the appeal never took place.
DECISION:
Having fully considered the submissions of the parties the Court can see no reason to differ from the conclusions and recommendation of the Rights Commissioner. Accordingly the appeal is disallowed and the recommendation of the Rights Commissioner is upheld.
Signed on behalf of the Labour Court
Kevin Duffy
17th May, 2005______________________
TOD/BRChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.