INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
BURNS INTERNATIONAL SECURITY SERVICES (IRELAND) LTD
(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 Company against the Rights Commissioner's recommendation No. 369/98GF.
2. The appeal concerns a worker who has been employed as a security guard for the past eleven years. For the past seven of those years the worker was a Leading Guard (supervisor). On the 24th of November, 1997, the worker was asked by Management to move from his then location (site 782) to another site (792 - a chemical plant), because of lack of suitably trained personnel at that site. The worker refused and the Shift Manager went to the location to try to persuade the worker to move. A verbal altercation ensued following which the worker stated that he was ill, reported to the Control Office and went home. Following the incident the worker was demoted and issued with a final written warning. The Union claimed that the worker was unfairly treated. The Company rejected the claim. The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 18th of November, 1998, the Rights Commissioner issued his recommendation as follows:
"...I recommend that the claimant be re-instated to his position as Leading Guard with the Company by February, 1999."
On the 23rd of December, 1998 the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 2nd of March, 1999.
1. The Company carried out a full disciplinary procedure resulting in the worker's demotion and the issue of a final written warning, this decision was upheld after an internal appeal.
2. The worker's behaviour on that evening and his treatment of the Shift Manager was totally unacceptable for any member of staff. The exchange took place in front in a number of witnesses therefore, the facts of the matter are not in dispute.
3. By refusing to switch locations as requested the worker refused to comply with a reasonable request. His attitude constituted a direct challenge to the authority of his Shift Manager , who was his superior. The Shift Manager was shaken and upset by the worker's attitude.
4. Refusal of a worker to comply with a reasonable request constitutes grounds for dismissal in many companies. The Company did not take this drastic step in this instance and opted for the lesser sanction of demotion instead.
5. The worker by his action has shown that he is not suited to the position of Leading Guard, and the Company therefore demoted him.
1. The worker accepts that words were exchanged between himself and the Shift Manager, however he had no intention to and did not behave in a threatening and aggressive manner. Robust exchanges are common in the industry. The exchange was heated because the worker was unhappy with the manner the Shift Manager appeared on site. The demeanour of the Shift Manager was to the effect of been unhappy to have to come to the site and quite obviously he did not want to be there.
2. In relation to refusing an instruction, the worker had a medical problem which previously had been known. The worker could and did perform his duties on site No. 782 but could not perform the duties expected of him on site No. 729. It has been established procedure that when an employee declares himself unfit that that is sufficient to be excused.
The worker did this so as not to put himself or the Company in danger, which he would have by placing himself on a site where he would have difficulty coping on that site. In fact, the Company should have allowed the worker, once declared unfit, to go home and end the matter there. This is established practice in the employment.
3. While the recommendation of the Rights Commissioner falls considerably short of the worker's expectations, the Union is willing to accept it and asks the Court to uphold the recommendation.
The Court has given serious consideration to both the written and oral submissions made by the parties. The Court is of the view that the decision by the Company to demote the employee was fair and reasonable in the circumstances, therefore, the Court has decided to uphold the decision made by management.
The appeal succeeds and the decision of the Rights Commissioner is therefore overturned.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.