Labour Court Database __________________________________________________________________________________ File Number: CD86772 Case Number: AD8698 Section / Act: S13(9) Parties: QUIGLEY OF EUROPE LTD - and - ITGWU |
Appeal by the Union against a Rights Commissioner's Recommendation concerning the suspension from duty of a worker.
Recommendation:
7. The Court having considered all the aspects of this case finds
no justification for altering the rights Commissioner's findings.
The Court so decides.
Division:
Text of Document__________________________________________________________________
CD86772 THE LABOUR COURT
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. AD9886 OF 1986
PARTIES: QUIGLEY COMPANY OF EUROPE LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Union against a Rights Commissioner's
Recommendation concerning the suspension from duty of a worker.
Background:
2. The worker has been employed by the Company for over twenty
years, the last fifteen of which he has served as foreman in its
occupancy department. As foreman he is responsible for the
condition of the yard, canteen, toilets and showers. The Company
says that the number of workers employed in this area depends on
the level of production. Under full production there are four
workers in this area but as production has fallen to under 50%
there are only 2 workers employed there at present.
3. On 27th May, 1986, the worker was instructed by the production
manager to get the showers cleaned. He refused to do so on the
basis that he needed an extra worker to do the job and that his
own duties were associated with the yard where he was engaged
full-time. When he again refused to do the work when requested to
do so at a meeting in the factory manager's office on the 28th
Nay, 1986 he was suspended from duty for two weeks without pay.
Following a Labour Court conciliation conference the period of
suspension was reduced to three working days but the worker also
suffered the loss of one week's Social Welfare payment. On
resumption of duties the worker agreed to do the disputed work
under protest until it was investigated by a Rights Commissioner.
The dispute was then referred to a Rights Commissioner who having
investigated the matter issued the following recommendation:-
"As a working foreman it would surely be one of his
responsibilities to ensure that hobs were done even by
himself if there was nobody else to do them. Therefore he
could be expected to do all of the jobs within his Department
according to the priorities of each if he was short-handed;
this could of course mean leaving other jobs undone on
occasions.
Accordingly on 27th May he was obliged to carry out the
disputed instruction but his least reaction should have been
to do it under protest. Therefore a suspension was warranted
and as it has already been reduced to three days that is as
far as the Company need go.
The loss of the ensuing social welfare entitlements was an
unfortunate consequence of this which is an unexpected and
unprovided for penalty. For that reason and because his
application to the job and the Company's satisfaction with
him is otherwise accepted I recommend that he be given a
special once-off payment of #100".
The Union rejected the recommendation and appeal it, under Section
13(9) of the Industrial Relations Act, 1969, to the Labour Court.
The Court heard the appeal on 5th November, 1986, in Cork.
Union's arguments:
5. (i) There are four specific jobs to be performed in the
occupancy department viz. yard, tractor driving,
canteen and toilet and shower. Under normal
circumstances there are four workers in this
department, including the worker concerned, to carry
out these jobs. Since becoming foreman the worker has
been responsible for the yard where he is engaged on a
full-time basis on various duties (details supplied to
the Court). At the time the incident in question
arose the manning levels in the occupancy department
was reduced to two workers due to redundancies and
short-time working in the plant (details supplied to
the Court). In the circumstances, it was unfair of
the Company to ask the worker to carry out duties
outside his normal work schedule.
(ii) The worker was never consulted by management regarding
changes in his normal work practices, nor did he agree
to any such change. Therefore the Company, by asking
him to do work outside his normal duties, is in breach
of clause 8.7 of the works agreement which states the
following:-
"it is understood that no unilateral action will be
taken by either party until all the procedures have
been exausted".
It follows that the Company were also in breach of the
grievance/disputes and disciplinary procedures.
(iii) While being mindful of clause 1.8 of the works
agreement which states that instructions from those in
authority should be carried out, nevertheless the
Union feels that management totally misused the clause
in this case to force the worker to accept its views.
(iv) The worker is the only employee in the plant who was
expected to change from his regular job to a set of
new duties.
(v) Following the recent redundancies the Union has
discussions with management regarding revised manning
levels for a return to full working. While these
negotiations have not been concluded, there is
agreement in principle that the occupancy department
will require a minimum manning requirement of three.
(vi) It is recognised by all at the plant that the worker
carries out his duties in a most satisfactory and
concientous way and no complaint has ever been made in
the past concerning his work. Having regard to this
and the points outlined above it is clear that the
workers suspension was unfair. Therefore, the worker
should have the three days' pay restored to him as
well as a week's social welfare payment which he lost
through the suspension imposed on him.
Company's arguments:
6. (a) The worker was given every opportunity to avoid being
suspended and unless there is a complete change in his
attitude, he cannot presume to retain his position as
foreman in this or any other department.
(b) By refusing to carry out the instruction in question,
even under protest, the worker was in breach of clause
1.8 of the Company/Union agreement which reads as
follows:-
"When an instruction is given by a shift leader or
other person in authority, his orders will be
carried out (even though they may appear to the
person to whom they are issued to be contrary to
the terms of the Agreement). The disputed
operation will constitute a grievance which will be
dealt within the agreed grievance/disputes
procedures".
(c) In all the circumstances the Rights Commissioner's
Recommendation should be upheld.
DECISION:
7. The Court having considered all the aspects of this case finds
no justification for altering the rights Commissioner's findings.
The Court so decides.
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Signed on behalf of the Labour Court
November, 1986 ________________________________
T.McC./P. Nicholas Fitzgerald
Deputy Chairman