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: Ms Jenkinson
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Appeal by the Union against Rights Commissioner's Recommendation 491/98.
2. The appeal concerns a worker with eighteen years service in the Company who was the subject of disciplinary proceedings by the Company on the grounds that he had refused to accept an instruction from a supervisor. The worker was issued with a final written warning. The Union claims that the worker was unfairly treated. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 26th of November, 1998 the Rights Commissioner issued his recommendation as follows:-
"I, therefore, recommend that the Union's appeal fails and that the
final written warning should stand."
On the 2nd of December, 1998 the Union appealed the recommendation to the Labour Court. The Court heard the appeal in Limerick on the 14th of April, 1999.
3. 1. Over the past eighteen years, the worker concerned has co-operated fully with the Company whenever overtime was required. Approximately four to five months ago, the worker and his direct supervisor had a difference of opinion, in that the worker was being asked by his supervisor to come in on overtime for 12 hours at a time. The worker found this unfair, because other employees could come in on overtime and work only 8 hours. It was arising out of this difference of opinion that the worker informed the supervisor that he would come in on overtime to clean the silicone tank and to clean the floor, which would require the same level of overtime as other employees, (8 hours), however, if work in production arose the worker was not interested and he wished to be excluded from production work, solely on an overtime basis. This was communicated by the worker to the supervisor quite clearly and expressly.
2. Over the proceeding weeks the worker was asked to come in on overtime, but declined as the work that was available was in production, this was accepted by his supervisor and no issue was raised about this matter, at the time. On the 7th of June overtime again was available, when the worker accepted to come in on Sunday, June, 7th. It was on the clear understanding that he would be either cleaning the silicone tank or cleaning the floor. This was understood by the worker and his supervisor. When the worker reported for overtime on this Sunday, another supervisor (not his direct supervisor) wanted the worker to "run a couple of sheets on the Cameron machine". He advised this supervisor that he was contracted to come in on overtime to either clean the silicone tank or clean the floor. When he asked the supervisor to get someone else to run the machine, the supervisor stated no one was available. If the worker's direct supervisor was working on this day in question he would have completed his day's work as understood and there would not be an issue now. However, the other supervisor and the worker were in dispute over the work for which he was on overtime, and the worker felt that he was brought in to do overtime under false pretences. On this basis the worker, therefore, advised the supervisor that this was unacceptable and he went home.
On the 8th of June, 1998 the worker was called into the office where the General Manager and the other supervisor accused him of not obeying an instruction and an order. A final written warning was issued to him.
3. The disciplinary action taken by the Company on this occasion is totally unjustified. The agreed Disciplinary Procedure clearly spells out each stage - Counselling (Stage 1), Verbal Warning (Stage 2), 1st Written Warning (Stage 3), 2nd and Final Warning (Stage 4) and Dismissal (Stage 5). The worker's excellent record and a more thorough investigation into where the lines of communication broke down would show that he is blameless and that a final written warning is totally unjustified and unfair. It should be withdrawn forthwith.
4. 1. The worker was rostered to come into work on overtime to clean the Cameron Tank. However, priorities changed and the supervisor requested that he perform his normal duties on the Cameron machine by running off a few sheets of product to ensure his colleagues did not run out of work. As such this was a legitimate and entirely reasonable request. The worker did not agree to carry out this legitimate request as he claimed he was asked in on overtime to clean the Cameron Tank.
2. The worker subsequently informed the Company that he had agreed to attend for overtime to complete one specific cleaning duty on the Cameron machine. The worker also stated that had he known that he would be required to do production work he would not have come in on overtime. The supervisor who rostered the worker's overtime agreed that the overtime was rostered to attend to the cleaning tasks but priorities changed.
3. The worker worked overtime on previous occasions where he attended to production work on his machine.
4. It is for the Company management to organise work and allocate staff accordingly. On this occasion, the work detailed by the supervisor was necessary to maintain other operator's work and to clear trolleys for the next day's production.
5. The worker is employed to operate the Cameron machine in its productive capacity. It is untenable that he would refuse to do his own work or dictate the precise nature of work for which he should receive overtime payment at a enhanced rate. Cleaning work is non-production work with no direct return to the Company. As such many companies would refuse to pay overtime premium for such work.
6. Employees attending for work are at the disposal of the Company and are required to work as directed by the Company for the duration of the hours paid for by the employer. Furthermore, employees are fundamentally required to co-operate and to work flexibly as per the Company/Union agreement. It is required as part of the contract of employment that employees co-operate with any reasonable request to assist the Company work, processes or to assist their colleagues and to operate flexibly.
7. If the worker had any difficulty with his supervisor's request he should have carried out the work, if necessary under protest, as per the Company/Union agreement.
8. The worker's actions in leaving the workplace without authorisation or giving of notice, and in advance of his agreed finishing time warrants disciplinary sanction.
9. Such fundamental lack of co-operation is unacceptable. In the context of "Partnership 2000" and the types of working relationships necessary into the future, such behaviour is totally unacceptable.
10. The Company conducted a thorough and fair investigation into the incident and took written statements from witnesses. These statements were read back to the witnesses and agreed at the time of the investigation. These statements were then used to enable the Company take the necessary decisions on this matter. The Company acted reasonably in the context of the information available at the time. The Company requests that the Court uphold the Rights Commissioner's recommendation.
The Court considered the submissions of both parties and is of the view that under the circumstances of this case and in an attempt to improve the industrial relations climate in this Company, the Rights Commissioner's recommendation should be amended to read "a written warning" instead of "a final written warning". This warning to be deemed to have expired with immediate effect.
The Rights Commissioner's recommendation should be considered to be amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
29th April, 1999______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.