FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BOXMORE PLASTICS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner Recommendation No: r-088894-ir-10/EOS
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner Recommendation No: r-088894-ir-10/EOS. The issue concerns a worker who was issued with a final written warning following a labelling error on a product he was responsible for and the subsequent dispatch of sub standard product to the Company client. The Union's position is that one five litre container was dispatched without one of its labels and that this had been treated very seriously by the Company. As a result the Company went straight to the final written warning stage of its disciplinary procedures which the Union contends is excessive in the circumstances and at variance with its own disciplinary procedures.
Management's position is that the worker allowed sub standard product to be dispatched to its customer which is of the utmost importance given that the customer will go elsewhere if the Company cannot guarantee that products will issue without such obvious faults. Management further contend that it issued the final written warning, not because it wished to threaten the worker with dismissal, but to emphasise the seriousness of what occurred and the risk to the future viability of the business if such errors were allowed to continue.
The dispute was referred to a Rights Commissioner for investigation. Her Recommendation issued on the 13th January, 2011 and found that while she accepted management's position in relation to the importance of eliminating such errors for its future viability, the Company acted at variance with its own procedures and on that basis recommended that the final written warning be reduced to a written warning.
On the 24th January 2011, the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 5th April, 2011.
UNION'S ARGUMENTS:
3 1 The worker cannot be entirely sure that the error was his. It is likely that it was but it was never confirmed beyond reasonable doubt.
2 The Company acted at variance with its own procedures by issuing the worker with a final written warning. The procedures also allow for verbal warnings and written warnings which would have been entirely more appropriate than the sanction imposed.
COMPANY'S ARGUMENTS:
4 1 The Company must have a zero tolerance policy in place in relation to such errors. If it fails to provide its customers with the product they require, there will be no business in the future and no employment for anyone.
2 The Company cannot sustain the costs of product recalls and repeat manufacturing of the sub standard product. It is, however, willing to discuss issues of concern with the Union with a view to maintaining a positive working environment into the future while at the same time, reaffirming its position in relation to quality issues.
DECISION:
The Court has carefully considered the submissions of both parties in this case.
The Court notes that the premium product sold by this company is a fully inspected high quality plastic container. Any failure on the part of the company to carry out that inspection effectively puts the employment of all workers at immediate risk. Accordingly the Company, staff and Union place a high priority on ensuring that all products meet the strict terms of each customer’s specifications. Accordingly the Company has a policy of treating any negligence on anyone’s part that results in sub-standard product being shipped to customers as a disciplinary matter of the first order.
In the case before the Court sub-standard product was shipped to a customer and the company concluded that the worker involved was negligent in the performance of his duties and was accordingly issued with a final written warning as a result.
However the disciplinary procedure provides that, except in cases of gross misconduct, an employee is entitled to a series of warnings of increasing severity prior to receiving a final written warning. Accordingly the Company technically acted in breach of the terms of the disciplinary procedure in this case.
The Rights Commissioner’s recommendation recognised this, varied the level ofwarning given to the worker,but sought to address the quality issue that thereby arose for the company by recommending discussions on an amendment to the disciplinary procedures to facilitate the company’s position. The Company appealed this recommendation because it was concerned that it sent a signal to staff that negligence in the monitoring of product quality was less serious than business and employment demanded.
The Court accepts this point. The Court also notes that there is a distinction between human error and negligent disregard of quality issues.
The Court is of the view that as the warning given to the worker as it has now expired no recommendation of the Court would have any practical effect in this case.
However, as recommended by the Rights Commissioner, discussions should take placeimmediatelyon a revision of the disciplinary procedure to allow for negligent disregard of quality issues by anyone within the company to be treated as a serious offence that could attract, depending on the circumstances, any of the sanctions set out in the procedures up to and including a final written warning. Such discussions should be concluded within 3 months of the date of this recommendation.
In the interim the Company should notify each member of staff directly and in writing that, until the amended text referred to above is in place, it will consider negligent disregard of quality issues as an act that comes within the definition of gross misconduct and that a first offence under this section could give rise to the person responsible receiving a final written warning depending on the circumstances of the case.The notification should detail the reasons why the production of the highest quality products is of such importance to the viability of the business and to the protection of employment.
Failure to agree on the text of a suitable amendment to the disciplinary procedure should,at the end of the three month period, cause the matter to be referred to an agreed arbitrator or to the Labour Court for a final determination.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
3rd May, 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.