INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
APPLE COMPUTER LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal by the Union against Rights Commissioner's Recommendation No. RC702/97(1) concerning Frank Wallace.
2. The appeal concerns a worker who has been employed by the Company for the past nine years, and is one of nine shop stewards at the Company's plant. On the 1st of May, 1997 a meeting was held in Dublin between officials of the Department of Enterprise and Employment and Union representatives and shop stewards. Arrangements were made with the Company's Human Resources Department to have all shop stewards released for the meeting and that they would travel on the 7.30 a.m. train from Cork. The claimant and a colleague (Mr. Murphy) had both inadvertently missed the early Cork - Dublin train on the morning in question. They decided to drive to Dublin. They were unable to find the venue of the meeting and had eventually arrived back in Cork at approximately 4.15 p.m. Management subsequently interviewed both employees about their non-attendance at the meeting in Dublin. By letter dated the 28th of May, 1997 the claimant and his colleague were both issued with Stage 3 or Final Written Warnings under the disciplinary procedures. The Union claimed that the worker was unfairly treated and referred the issue to a Rights Commissioner for investigation. On the 4th of December, 1997 the Rights Commissioner issued his recommendation as follows:-
"In the circumstances, I therefore recommend that the Union's appeal
fails and that the disciplinary action set out in the Company's letter
to Mr. Wallace of 28th of May should stand in full."
On the 22nd of December, 1997 the Union appealed the recommendation to the Labour Court. The Court heard the appeal in Cork on the 11th of March, 1998.
3. 1. The Company's action in issuing a final written warning to the worker was far too severe a penalty considering the circumstances. The worker concerned has nine years service with a good work record. He has no current disciplinary issues on his employment record.
2. The worker was charged with being absent from work, not reporting back to work, failing to advise management of his non-attendance at the meeting and fraudulently claiming a day's wages, yet agreement had been reached with the Human Resources Department that all shop stewards would be released for the meeting. The worker made every effort to get to the meeting. He was due to finish his shift at 8.00 p.m., but found it embarrassing to report to work and advise colleagues that he had missed the train. Had he reported back to work at approximately 5.00 p.m., he felt that the employee covering his duty on overtime would be sent home, thus causing further embarrassment to him.
3. The worker on being questioned by his supervisor the following morning (May 2nd) advised the supervisor that he did not attend the meeting. The worker did not claim wages in respect of the 1st of May even though he was at a substantial loss.
4. The Union found certain comments made about the claimant by the supervisor to the other employee during the investigation very disturbing (details supplied to the Court).
5. The claimant is of the opinion that management has penalised him for his strong views on ongoing industrial relations and for his courage in articulating these views.
6. While the claimant may have been technically in breach of the Union/Company Agreement in not reporting back to work, infringements of this nature are dealt with by the issue of a verbal warning at maximum.
7. The worker co-operated fully with management in its investigation.
8. Neither the worker nor his colleague were absent from work without leave on the 1st of May. Every effort was made by them to attend the meeting in Dublin. No pay was claimed by the worker in respect of the 1st of May.
4. 1. The worker concerned had leave of absence with pay and did not inform the Company that he had not attended the meeting held at the Department of Enterprise and Employment in Dublin.
2. The central fact of non-attendance is not in dispute.
3. When the issues relating to his non-attendance at the meeting of the 1st of May were put to the worker during the Company's investigation, he had answered some questions about the events but stated that put to him he could not remember, in response to a number of other straight forward questions about that day (details supplied to the Court).
4. There were differences between the worker's account of the events of the 1st of May and that of his colleague. The worker had no explanation for the discrepancies between the two accounts.
5. Management conducted an internal investigation into the comments which had allegedly been made to the other worker and no evidence had been produced to support the allegations.
6. The Company carried out a thorough and detailed investigation of the events of the 1st of May and treated the worker in a fair, reasonable manner in accordance with the agreed disciplinary procedures. The Company's action in issuing the final written warning was fully justified. Based on the disciplinary procedure in the Company a 'clean slate' practice, subject to behavioural improvements, operates over a 12 month period. The Company requests the Court to uphold the Rights Commissioner's recommendation.
The Court has given careful consideration to the forceful arguments made by the Union in support of this appeal.
However, the Court cannot accept the veracity of the Workers' account of what occurred on the date in question. Their lack of candour in response to the initial enquiries of management and at the internal disciplinary investigation, significantly aggravated what would otherwise have been regarded as less serious misconduct.
Having considered the evidence and submissions presented the Court feels that on the balance of probabilities, Mr. Murphy was slightly less culpable than Mr. Wallace. In this case the warning should be reduced to a written, rather than a final written warning. In the case of Mr. Wallace the imposition of a final written warning is fully justified. Furthermore, there is no basis whatever on which payment is respect of the day in question could justifiably be claimed in either case.
With regard to the withdrawal of release facilities for Union related business, the Court has some concern as to the appropriateness of such a sanction being imposed by the Company.
The workers were deputed to attend the meeting in Dublin, as representatives of their fellow union members. If their failure to attend added a further dimension of misconduct, relating to the performance of their duties as Shop Stewards, it should more properly be regarded as a matter which the Union might deal with under its own rules and procedures. Moreover, it is noted that the Company disciplinary code does not provide for this form of sanction.
The Court notes, however, the assurance given by the Company that it is not intended to interfere with or restrict the workers in the exercise of their functions as Shop Stewards internal to the employment. On that basis the Court does not propose any change to the Company's decision in the circumstances of this case.
The findings and recommendation of the Rights Commissioner should be varied accordingly.
Signed on behalf of the Labour Court
2nd April, 1998______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.