INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Brennan
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation No. 611/96.
2. The appeal concerns a decision taken by the Company to reassign a worker from driving duties to manual work. The Company alleged that due to carelessness on the worker's part damage had been caused to machinery whilst he was on driving duties. The Union sought the worker's return to driving duties on the grounds that he was being unfairly treated in relation to matters in which the Union claims he was not culpable. The Company's position was that the worker's removal from driving duties was fair, given the history of driving incidents concerning him. The matter was the subject of investigation by a Rights Commissioner who found that, while not in a position to comment expertly on certain technical aspects, the Company had reasonable grounds for the action it took. He recommended that the Union accept the Company's position and that the Company considered the worker for alternative driving duties when it might be appropriate. The Union appealed the Recommendation, in accordance with Section 13(9) of the Industrial Relations Act, 1969, on the 6th of December, 1996. The Court heard the appeal, in Donegal, on the 8th of May, 1997.
3. 1. The Company's allegations were based on opinion, and in some respects, guesswork. The reports on which the Company bases its allegations were drawn up by persons who, in some respects, had responsibility in the matter.
2. Malfunctions of the machinery were consistently reported but the engineers failed to rectify the faults. Culpability should, at least, be shared by the maintenance engineers.
3. Two specific accusations were levelled at the worker, as follows:-
(i) That he damaged computerised and automatic transmission system by shorting out electrics by using jump-leads carelessly;
(ii) That, by not draining the water traps, he caused contamination of the injector pump, causing a drop in revolutions and the erratic operation of the computerised transmission system.
In respect of the first complaint, the worker was compelled to employ an abnormal procedure to refuel the machine. This entailed the constant use of jump-leads (details supplied to the Court). There was no provision in the design of the machine for this type of use, which was a regular feature. The procedure is dangerous because of the possibility of fire and is made very difficult due to the position of the battery terminals. The worker actually advised the Company of the situation and suggested an alternative method of refuelling to avoid the inappropriate use of jump-leads.
On the matter of the transmission problems, the worker made numerous reports on the difficulties being encountered. The Company claim that water was present in the injector pump due to water traps not being drained is rejected, as there are other ways in which this problem could have arisen, e.g., due to poor quality diesel. On the specific issue of damage to the transmission system, the expert who reported on the damage claims that the damage could not occur in the course of normal operations. However, an abnormal system was employed daily, on the instruction of the Company, i.e., the use of jump-leads.
4. The Company claims that contamination of injector pumps arose from the careless use of jump-leads. It was the constant use of jump-leads which caused the problem. This was necessary because the Company failed to install a proper fuelling system.
5. The worker has worked for the Company for 18 years. He has not experienced any difficulties until he joined this work group.
6. Following a previous difficulty experienced by the worker, a warning issued. The Company have invoked this warning in an unfair way to justify the severe penalty being imposed now. Three conditions attached to that warning, two of which are being complied with. The third refers to the operation of the machine in a proper manner. There is no evidence that this condition is not being complied with.
4. 1. In the light of the conclusions made by the Company's expert following his investigation of the matter, the Company acted in a fair and reasonable manner in re-assigning the worker to general forest duties, on the basis indicated in the warning letter of 12th of January, 1996 (details supplied to the Court).
2. While the level of competence of the worker has been reasonably favourably commented upon, a general attitude of slackness has, however, been apparent, as evidenced by the matters involved in this dispute, and previous incidents complained of in the past. The combination of these factors constituted reasonable grounds for the action taken, a fact which the Rights Commissioner observed in his findings.
3. The transfer of the worker does not represent a demotion; as a piece worker or autonomous work group worker he can aspire to at least the same level of earnings he enjoyed as a forwarder operator.
4. The worker has been fairly treated in being assigned to alternative work, with no consequent loss of earnings, where another employer might have taken more radical action in response to a situation involving damage to a £160,000 machine.
The Court, having considered the written and oral submissions, finds that theRights Commissioner's Recommendationis not unreasonable in this case.
The Court, therefore, rejects the appeal and upholds the Rights Commissioner's Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
26th of June, 1997______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.