FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : JOHN B DOCKRELL LIMITED (REPRESENTED BY ABBOT INTERNATIONAL) - AND - A WORKER (REPRESENTED BY PADGE RECK MCC) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation IR21582/04/TB
BACKGROUND:
2. The worker was employed by the Company in November, 2003, as a general operative. In July, 2004, the worker was involved in an incident where she was seen sitting on a handrail some 18 feet above a concrete floor. She was asked by the Farm Manager to get down from this position. The Company's case is that her response, as follows, led to a decision to dismiss her:-
- Poor attitude/response to instructions from her senior supervisor
- Unacceptable behaviour when given information by management
- Gross misconduct in regard to health and safety
Basically, the Company claims that after being told to get down from the handrail a heated discussion followed. This also included a request for a toilet break 20 minutes after her lunch break. The conversation ended with the worker shouting and cursing. The worker acknowledges that she was sitting on the handrail but denies the subsequent events. She maintains that she was not disrespectful when reprimanded or that she used bad language. She asked to talk to the Factory Manager to complain about how she was treated. She later met with the Director of the Company who decided to suspend her on one week's pay while an investigation was pending. One week later she was told that her contract was being terminated.
The dispute was referred to a Rights Commissioner and his recommendation, issued on the 6th of April, 2005, was as follows:
"I accept that the claimant was in breach of safety regulations by sitting on the guard-rail. However, I believe the matter would have been handled differently if she had not complained.
I find in her favour and award her €1000 in compensation".
The worker appealed the recommendation to the Labour Court on the 28th of April, 2005, in accordance with Section 13(9) of the |Industrial Relations Act, 1969. A Labour Court hearing took place on the 25 August, 2005.
WORKER'S ARGUMENTS:
3. 1. The worker was extremely upset by the way she was treated by the Farm Manager, both with the incident at the handrail and when she asked to go to on a toilet break. She accepts that the Farm Manager had a right to reprimand her.
2. The worker was not given any prior verbal warnings as the Company claims. She did not use bad language at the time of the incident.
3. The worker believes that she was victimised because she made a complaint about the Farm Manager.
COMPANY'S ARGUMENTS:
4. 1. The worker was sitting in a highly dangerous position on the handrail. She could have killed herself or someone else if she had fallen. At no time did she apologise or acknowledge the seriousness of the situation.
2. The Farm Manager was correct to order her down in the interest of safety. He had to raise his voice as it was noisy in the area.
3. The worker had been given a number of verbal warnings prior to the incident. Her dismissal was because of her attitude on the day in question and her failure to recognise any wrongdoing.
DECISION:
The Court has considered the views of the parties expressed in their oral and written submissions. The employer stated to the Court that the dismissal of the worker was due to gross misconduct in not accepting the wrongdoing when she was in breach of safety regulations by sitting on a rail in dangerous circumstances. The Court fully accepts the employer's necessity to ensure compliance with all safety matters. The employer submitted to the Court that the worker did not take on board the seriousness of the risk she had put herself and others in, that she was confrontational and did not recognise management's authority.
However, the Court is not satisfied that the employer's perception was an accurate one, due to the fact it was never directly put to her whether she viewed the matter as a serious breach of safety and, secondly, the meeting to discuss the incident was clouded by other unconnected emotive issues. The Court is satisfied that even if she accepts (as she did at the hearing) that the breach of safety regulations was a serious one, she failed to get that sentiment across to management.
In all the circumstances of this case, the Court recommends that the Company should pay her a sum of €2,000 in full and final settlement of the claim. The Court varies the Rights Commissioner's recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th September, 2005______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.