INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal of Rights Commissioner's Recommendation 1130/97 concerning disciplinary action.
2. Fulflex International has been operating in Limerick for over 28 years. It manufactures rubber elastic products, primarily for the European Market and employs approximately 150 people.
The dispute before the Court concerns an incident which occurred on the 5th of September, 1997 involving the worker concerned and another worker. The Company argues that the incident in question which occurred in the presence of a supervisor constituted gross misconduct as per the Company/Union agreement. Following an inquiry it issued the worker with a final written warning and suspension without pay for three days. The worker appealed the Company's decision but to no avail.
The Union referred the matter to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"Based on the evidence before me, I an satisfied that the incident
which took place on the evening was of a type which has no place
in a modern workplace. I am further satisfied that the worker was
involved in a major and proactive way. I am not satisfied, however, that the Company investigated the matter properly when it came to their
attention or, indeed, dealt with the issue subsequently in a totally
fair and open way.
Given the procedural defects, I believe that a period of suspension
is not appropriate in this case and that the final written warning is a
more appropriate punishment. I note from the Company's letter of the
6th of October, 1997 that such a warning has a "life" of three months
and I would also see that as appropriate in this case.
In the circumstances, I therefore recommend that the disciplinary
action to be imposed on the worker should be limited to a final written
warning which would now be deemed to have expired on the 6th of
The worker was named in the recommendation.
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court on the 4th of March, 1998 under Section 13(9) of the Industrial Relations Act, 1990. The Court heard the appeal in Limerick on the 23rd of April, 1998.
3. 1. The workers involved in the incident have known each other for over 20 years. As far as they were concerned the verbal exchange was a flair of temper. The supervisor sent both individuals about their business and that was the end of the incident as far as they were concerned. It was their understanding that no formal complaint had been made by the supervisor.
2. The worker disputes some of the content of the supervisor's report. The supervisor was not present at the appeal hearing. This deliberate action by the Company flustered the worker's appeal and denied him the opportunity to challenge the supervisor's account of the incident.
3. The Company's unfair treatment of the worker is in contrast to its response to a similar incident of equal verbal intensity which occurred between different individuals after the incident in question.
4. This issue has seriously undermined the credibility of the disciplinary procedures in the Company. The workers do not accept that this process has the necessary impartiality to apply fair procedures, a serious matter that has long term implications.
5. The Company did not investigate the incident properly. In the circumstances the Union is seeking that the worker's previous good name and good record be restored.
4. 1. A Company/Union agreement concluded under the auspices of the Labour Relations Commission was formally signed in May, 1995.
Article 28 of this agreement lists a number of acts which are categorised as "grave breaches of discipline/gross misconduct" and which are liable to immediate dismissal. The worker's conduct clearly represents an act of gross misconduct, namely "... provoking ... a fight while on the Company premises". However, in this case, rather than dismiss, the Company opted for a final warning and a short suspension. The sanction imposed was the minimum that could have been imposed in the circumstances and that any diminution of same would seriously undermine the
credibility of the disciplinary procedures. Moreover, at a time when bullying in the workplace is being given national attention, and Congress and the Trade Union Movement have added their condemnation, it would be intolerable for management to ignore the worker's grave action.
2. The facts of the incident are not in dispute. The supervisor was present and observed what happened at first hand. The supervisor's report was put to the worker and the essential content was not disputed. Because the facts were not disputed, the Company did not see the need to interview any further witnesses.
3. The Company has applied due process at all stages of this case. A full investigation was carried out into the events of the 5th of September, 1997. During this investigation, the worker was accorded a fair hearing where he was given his representational rights and also an opportunity to explain his actions to management. The Company also afforded an internal right to appeal, and gave the matter serious consideration.
4. The Rights Commissioner reduced the disciplinary sanction to a final written warning, minus the suspension without pay. The Company was most concerned at this recommendation, particularly as the Rights Commissioner had previously recommended likewise in another case, but only on the basis that "a lenient response was appropriate on a once-off basis". The Company reluctantly agreed to abide by this decision in the interests of promoting good industrial relations within the Company,
5. In view of the incident of gross misconduct, the clear provisions of the Company/Union agreement and the minimum sanction imposed, it is respectively requested that the Rights Commissioner's Recommendation in this case be upheld.
The Court, having considered the written and oral submissions, is satisfied that the Rights Commissioner's recommendation is reasonable in the circumstances of this case.
The Court notes the Company's commitment that the note in the employee's file would be destroyed and not used at any future time.
Signed on behalf of the Labour Court
13th May, 1998______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.