Labour Court Database __________________________________________________________________________________ File Number: CD91569 Case Number: AD92121 Section / Act: S13(9) Parties: MONAGHAN POULTRY PRODUCTS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation ST389/91.
Recommendation:
5. The Court has given careful consideration to the points of
appeal made by the Company and the response from the Union. The
Court has come to the conclusion that the Company acted in a
proper manner and that the employee was not unfairly dismissed.
However, whilst upholding the appeal on this point the Court
considers in the circumstances of the case that the employee
should be given a further chance and accordingly recommends that
she be re-instated as from the Monday following the date of this
recommendation, be issued with a final written warning to expire 6
months from the date of this recommendation and be counselled in
the presence of her full time Trade Union Official in relation to
her attendance.
The Court so decides.
Division: Ms Owens Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD91569 APPEAL DECISION NO. AD12192
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
PARTIES: MONAGHAN POULTRY PRODUCTS LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation ST389/91.
BACKGROUND:
2. The worker concerned in this dispute was employed by the
Company in April, 1980 as a general operative. In September, 1988
she was requested by the Company to attend a meeting to discuss
her sick absence record. At the meeting she was cautioned by the
production manager that if her sick absence record did not improve
the Company would take disciplinary action against her. Her
attendance record did not improve in the period January 1989 to
April 1991. In that period she was warned verbally and in writing
and she was suspended for three days. Between April 1991 and the
3rd October, 1991 when she was dismissed, her record did not
improve. The Union claim that when the worker was dismissed a
union representative was not present which is contrary to the
Company/Union agreement. As no agreement could be reached locally
the matter was referred to a Rights Commissioner for investigation
and recommendation. On 8th October, 1991 the Rights Commissioner
recommended as follows:-
"I have to give the claimant the considerable benefit of the
doubt in relation to the direct conflict of evidence of 3
above. I am also satisfied that she was not fully aware of
her right of appeal when she received her 3 day suspension.
However she has greatly contributed to her own dismissal
through her failure to service her contract properly. In
these circumstances she may not get away without penalty.
Accordingly I recommend that she was unfairly dismissed on
purely technical reasons - i.e. the dismissal was
technically flawed. I further recommend that she receives a
two week suspension without pay. That she receives a final
written warning to expire on the 1/10/1992. She should be
counselled in the presence of her full time Trade Union
Official in relation to her future attendance".
UNION'S ARGUMENTS:
3. 1. Before disciplinary action was taken by the Company, the
worker should have had her Union represent her. The Union was
not notified that a difficulty was developing with the worker
concerned. Proper representation might have prevented
warnings being given or recorded.
2. The worker's problems commenced in 1987 when she gave
birth to her forth child. This child become seriously ill and
was hospitalised. Warnings were issued to the worker at that
time.
3. The worker's husband is on an invalidity pension and
will never work again. As a mother of five children and the
sole breadwinner in her home, it is imperative that she be
reinstated to her job. The worker's income pays the mortgage.
4. The worker is capable of discharging her
responsibilities to the Company. The action taken by the
Company is not in keeping with the good relationships built up
over the years between the Company and the Union.
COMPANY'S ARGUMENTS:
4. 1. The worker's absenteeism record was never disputed. It
is an appalling record by any standards, particularly in the
light of the number of warnings issued to her. These warnings
were in accordance with the disciplinary procedures and
outlined in writing the consequences to the worker if no
improvement in her absenteeism was forthcoming.
2. The Rights Commissioner erred in his finding that the
worker was unfairly dismissed and the technical grounds on
which he relied are flawed. The worker had her assistant shop
steward present at the meeting held on 3rd October, 1991.
3. After the worker received a final written warning she
was absent again. The Company went outside normal
disciplinary procedures by given her one last chance on the
basis of her personal plea.
DECISION:
5. The Court has given careful consideration to the points of
appeal made by the Company and the response from the Union. The
Court has come to the conclusion that the Company acted in a
proper manner and that the employee was not unfairly dismissed.
However, whilst upholding the appeal on this point the Court
considers in the circumstances of the case that the employee
should be given a further chance and accordingly recommends that
she be re-instated as from the Monday following the date of this
recommendation, be issued with a final written warning to expire 6
months from the date of this recommendation and be counselled in
the presence of her full time Trade Union Official in relation to
her attendance.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
13th January, 1992 -------------
F.B./U.S. Deputy Chairman