INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
FAMAC INTERNATIONAL LIMITED
(REPRESENTED BY BCM HANBY WALLACE, SOLICITORS)
- AND -
MARINE, PORT AND GENERAL WORKERS' UNION
1. Alleged Unfair Dismissals
2. The Company provides a delivery service for business parcel traffic and furniture/white goods. The dispute concerns two employees who worked together collecting and delivering furniture. On 21st February, 1996 the following incident occurred: The two men delivered a parcel in Finglas and proceeded to the next delivery on New Cabra Road. The truck was stopped for 3/4 minutes at Reilly's Bridge. When the two workers arrived at New Cabra Road they noticed that the back door of the van was opened and that 2 items (an exercise treadmill and a karaoke machine) were missing. The men reported the incident to management and to the Gardai in Cabra.
A disciplinary hearing took place on 23rd February, 1996. The Company claims that both men were offered the opportunity to have someone present with them at the hearing but the men declined. Both men were interviewed seperately. It also claims that the men were informed that the hearings could lead to disciplinary action.
No clear explanation could be given by either side as to how the goods disappeared. The two men were informed that they were to be suspended, pending further investigation.
A second hearing took place on 29th February, 1996. The Company claims that as the men could not give any satisfactory explanation regarding the missing items, they were guilty of gross negligence and were dismissed. Both men were given leave to appeal the dismissals but at the appeal hearing the dismissals were upheld.
The Union wrote to the Company on 1st March, 1996, requesting deferment of the implementation. The Company rejected the request. It also refused to allow the men to be represented by the Union. Further correspondence took place between the Union and Company but the dismissals were upheld.
The Union referred the dispute to the Labour Court on 25th March, 1996 in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 21st May, 1996.
3. 1. The 2 missing items were in the van when it left Finglas. When the van was stopped at the bridge the drivers noticed three youths nearby. The two men reported to management, and also to the Gardai, as soon as they discovered that the items were missing.
2. The Company's refusal to allow the men to be represented by the Union was unfair. The Union made a number of requests to the Company to represent them but to no avail.
3. The Company's Disciplinary Rules and Procedures state that in cases of alleged misconduct employees have "the right to a fair hearing and the opportunity to state their case" and "the right to be accompanied by a fellow employee of their choice". The Company ignored the general principles of its own Disciplinary Rules and Procedures.
4. According to the Company's own procedures, the incident would fall under the Major Misconduct Procedure, for which a first written warning would be appropriate, not dismissal.
4. 1. The two men were unable to explain satisfactorily the disappearance of the items in question. The men stated that the van was secured when they left Finglas. After the event, the Company conducted a number of tests on the van but it did not seem possible that someone could have stolen the goods without the driver being aware of their presence.
2. The goods were in the care of the two workers and, as such, their disappearance was regarded as gross negligence by the workers. According to the Company's Disciplinary Rules and Procedures, the two men were dismissed.
3. The Company followed fair and proper procedures during the investigation. The two workers declined representation until after their dismissal. The Union did not try to become involved until 1st March, 1996, after the men were dismissed.
The Court has fully considered all of the views expressed by the parties in their oral and written submissions, including the Terms and Conditions of Employment with Appendix 2 Disciplinary Rules and Procedures, together with the minutes of the meetings of 23rd and 29th February, 1996, and the minutes of the Appeal meeting held on 8th March, 1996.
The Court finds that the employees were advised that the meetings of 23rd and 29th February, 1996 were initial meetings to ascertain the facts regarding an incident, and that they were meetings in the words of the Company "that may lead to disciplinary action".
The Court finds that there was no indication from the minutes that the employees were advised they could be dismissed at these meetings.
In the event, the meeting of the 29th February, 1996, stated by the Company as a continuation of the meeting of the 23rd February, 1996, culminated in the dismissal of the employees here concerned.
The Court finds that the manner in which the dismissal was effected left much to be desired.
The Court considers that the outcome of themeetings"to ascertain the facts regarding theincident" should have been communicated at a separate meeting to the employees concerned, and they should have been advised that they were being charged as a consequence with"gross misconduct"with a liability to being summarily dismissed.
The Court considers that they should have been given the opportunity at this stage to be accompanied by a "friend" and given the opportunity to show cause as to why they should not be dismissed.
The Court is disturbed to find that a representative of management was party to the conduct of the meetings of the 23rd and 29th February, and also took part in those meetings, and also was party to and took part in the appeal hearing of 8th March, 1996.
The Court finds that, given that the Company had dismissed the employees, it was unreasonable to deny them their preferred representation at the appeal hearing against the decision.
The Court is cognisant of the dispute regarding recognition, but considers that the Union official representing the employees in what was an individual disciplinary matter did not compromise the Company position, and was within normal industrial relations parameters.
The Court, notwithstanding the above, considers that the employees concerned did not exercise due care in ensuring that all the necessary procedures were carried out to secure the contents of their vehicle.
Whilst the Court considers that dismissal in this case was too severe a penalty, given all of the circumstances, the Court recommends that the workers concerned be paid compensation in the amount of £200, together with their notice and holiday pay in full and final settlement of this dispute.
Signed on behalf of the Labour Court
1st July, 1996______________________
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.