INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
JOHNSON BROTHERS LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation No. 380/98CW.
2. The Company is a sales, marketing and logistics company, distributing to the grocery, wholesale and retail sectors, employing a staff of over 200. In the logistics sector, the company employs over 80 operatives who work in a multi-skilled environment in the Company's 100,000 square foot warehouse in Walkinstown.
The dispute concerns one worker, a warehouse operative who has been employed by the Company since July, 1994.
The Company claims that, due to continued poor attendance and non-compliance with Company procedures, the worker received numerous oral and written notifications, including a final written warning, during the period June, 1995 to March, 1998. Following further absence and non-compliance with Company procedures, the Company then indicated that it had no alternative but to terminate the worker's employment. At a subsequent meeting with the Union's Branch Representative the Company accepted that it had not fully notified the Union Representative concerning the matter. Accordingly, it decided not to dismiss the worker but to issue a suspension and a further final written warning. The Union sought that the final written warning and suspension be withdrawn on the grounds that the worker had been disadvantaged by the Company's failure to apply agreed procedures.
The matter was investigated by a Rights Commissioner who found the behaviour of the worker and the Company to be outside accepted norms. He found further that, while the situation of the worker was mainly of his own making, it would be in his own interest to make the Company aware of any special circumstances affecting his conduct. He added that he felt that suspension without pay would not help the worker improve his situation. However, he recommended that the final written warning should stand. The Rights Commissioner indicated that he believed that the Union should be able to make representations on behalf of the worker regarding the final written warning after he had demonstrated an ability to conform to acceptable patterns of time-keeping and attendance.
The Union appealed the Rights Commissioners recommendation, to the Labour Court, on the 17th of August, 1998, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 9th of November, 1998, the earliest date suitable to both parties.
1. The Rights Commissioner recognised that the behaviour of both the worker and the Company was outside accepted norms. Consequently, the week's suspension was recommended against while the final written warning was retained. A final written warning can in many cases be more severe for an employee as it can be invoked without recourse to any other action. It is often the final door to termination of employment.
2. The worker concerned did not grasp the seriousness of the situation and, in view of the Company's contravention of procedures, the disciplinary action proposed is too severe.
1. The Company gave the worker in question every opportunity to improve his attendance and comply with Company procedures. However, despite continued warnings, his absence and late attendance deteriorated and his non-compliance with Company procedures continued.
2. The Company's breach of procedures in not notifying the Union Representative of the situation was minor and technical. The worker was invited to have representation at each and every meeting. Due to the Company's acceptance of its breach of procedures, the worker was not dismissed. The final written warning he received will be invoked only if his behaviour deteriorates. Accordingly, the Company accepts the Rights Commissioner's recommendation as being reasonable in this case.
The Company indicated at the hearing that, if the issuing of the final written warning, as recommended by the Rights Commissioner, was upheld, a decision to dismiss him would not be taken unless the claimant's performance deteriorated significantly.
Bearing this in mind and the fact that the claimant realises the seriousness of his situation, the Court recommends that the Rights Commissioner's recommendation should be upheld.
Signed on behalf of the Labour Court
7th December, 1998______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.