FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : KERRY INGREDIENTS (IRELAND) LIMITED TRADING AS KERRY INGREDIENTS & FLAVOURS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Application of Company /Union Agreement.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union in relation to the application of a longstanding Company/Union Agreement surrounding the Company's Disciplinary Procedures. Clause 22 of this Agreement clearly outlines each stage of the Disciplinary Procedures as follows; Stage 1- Verbal Warning, Stage 2- Written Warning, Stage 3- Final Written Warning, Stage 4- Suspension and Stage 5- Dismissal. It is the Union's claim that Clause 22 of the Company/Union Agreement has been misinterpreted and incorrectly applied by the Company. The Union is of the view that each stage of the Company's Disciplinary Procedures should remain active on an employee's personnel record for a period of six months and at the expiry of the relevant stage on the condition that there have been no further contravention on the employee's part that they should revert to the previous stage of the Procedures. The Union contends, however, that at present a Stage 4 suspension remains active on an employee's record for a period of twelve months in total as a suspended employee who has kept a clean record during the six-month suspension period reverts back to a Stage 3 final written warning which remains active for a further six months. The Union maintains that this is in contravention of the Company/Union Agreement and is seeking clarification on this issue. The Employer rejects the Union's position arguing that the Agreement is well-established and there has been no apparent issue with its interpretation or application until this present time.
The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 28th June, 2011, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on September 27th, 2012.
UNION'S ARGUMENTS:
3. 1. The Employer is acting in breach of the terms of the Agreement and has applied it incorrectly.
2. The Employer has misinterpreted the terms of the Agreement by extending the Final Written Warning Stage by a further six months following the Suspension Stage.
EMPLOYER'S ARGUMENTS:
4. 1. The Agreement is in operation for a period in excess of forty years.
2. The Agreement or its application has never been challenged until now. On that basis the Employer sees no valid reason to alter the terms of the Agreement.
RECOMMENDATION:
The matter before the Court concerns an application by both parties for the Court’s interpretation of the Company/Union House Agreement in relation to Clause 22 “Disciplinary Procedures”, particularly in respect of Stage 4 : Suspension.
The Court notes that the Agreement has worked well for both parties for many years. Having considered the submissions made by both parties and having examined Clause 22 of the Agreement the Court notes that Suspension is one of the sanctions which may be imposed on an employee as part of the disciplinary sanctions. The Agreement provides at Stage 4 that where a Suspension is imposed, an employee’s“employment will be terminated if his/her conduct or performance does not improve within the given period”.Bothsides accept that“the given period”will last for a period of six months. It is furthermore accepted that on the expiry of each Stage of the Agreement (without further breaches of conduct or performance) the employee reverts back to the previous Stage they were on.
The Court is of the view that in circumstances where a Suspension is imposed on an employee where that employee had been issued with a final written warning in accordance with Stage 3 then on the expiry of “the given period” (Stage 4), i.e. six months, the employee reverts back to the final written warning stage (Stage 3). The Court interprets the Agreement accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
31st October 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.