AD9687

FULL RECOMMENDATION CD/96/526 APPEAL DECISIONNO.AD9687 (BC 241/96) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BORD NA MONA - AND - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Employer Member: Worker Member:

SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. BC 241/96.


BACKGROUND:

2. On 2nd October, 1995, following an investigation, 5 workers at the Company's Oweninny works were dismissed from their employment for falsifying finishing times. The workers at first denied the charges but, at a hearing on the 11th October, 1995, admitted their guilt. It was decided that, instead of dismissal, the following would apply: all 5 would be suspended from 2nd October to 28th November, 1995 - a period of 8 weeks. They would be removed from rail transport operations and placed in general operative duties, at the appropriate rate of pay.

In February, 1996, the Union sought to have the men reinstated in the transport department. The Company refused to do so and the issue was referred to the Labour Relations Commission. When the issue was not resolved at the conciliation conference it was referred to a Rights Commissioner. Prior to a Rights Commissioner's hearing, 3 of the 5 workers took voluntary redundancy. The Rights Commissioner's Recommendation, in the case of the remaining 2 workers, is as follows:

"I recommend that the Company decision is amended to allow for consideration of a return to transport duties from October, 1997".

The Union appealed the recommendation to the Labour Court on 1st October, 1996, in accordance with Section 13(9), of the Industrial Relations Act, 1969. A Labour Court hearing took place on 12th November, 1996, in Mullingar.

UNION'S ARGUMENTS:

3. 1. The Rights Commissioner did not give full regard to all of the sanctions taken against the 2 workers. They lost 8 weeks wages, which was a severe penalty. Both workers dropped in their earning power since October, 1995 and will continue to do so until October, 1997. They were removed from a section where they worked with friends and colleagues. Three of the 5 workers involved have left the Company because of the severity of the sanctions against them.

2. Both workers have long service and clear records prior to the incident. They have expressed remorse for their actions and have been punished enough. They should be reinstated in the transport department immediately.


COMPANY'S ARGUMENTS:

4. 1. The workers were guilty of gross misconduct. The Company regarded it as a very serious offence. They would have been dismissed had they not admitted their guilt and remorse at their actions. It was necessary and appropriate that they should be removed from the section where the offence took place. It was also necessary for the Company to impose the sanctions it did because of the seriousness of the offence.



DECISION:

The Court has fully considered all of the issues raised by the parties in their oral and written submissions. It is the view of the Court that when the Company decision was made, it was in the expectation that agreement would have been reached on a new payment system in a reasonable time scale.

In view of this, and the previous unblemished record of the employees here concerned, the Court considers that the employees should be considered for return to transport duties after January, 1997.

The Rights Commissioner's Recommendation should be amended accordingly.

The Court so decides.



Signed on behalf of the Labour Court



Tom McGrath
17th December, 1996______________________
C.O'N./S.G.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.