INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
CADBURY IRELAND LIMITED.
- AND -
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
Chairman: Mr Flood
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal of Rights Commissioner's Recommendation IR1273/00/CW concerning dispute over the issue of a final written warning.
2. The worker concerned has been employed by the Company for the past 8 years on a temporary basis and recently he has been made permanent. On the 23rd of December, 1999, he received a written warning for alleged unacceptable behaviour towards another employee. Following a further complaint from a colleague on the 7th of February, 2000 he received a final written warning.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and Recommendation are as follows:-
"I consider that the written warning was appropriate in this instance. If the worker requests independent counselling I suggest that the Company facilitates it for him. Should such counselling recommend that the worker seek a transfer then (subject to Union's agreement) the Company could review the bar.
I recommend that the Union and the worker accept the Company position in this dispute."
The worker was named in the Recommendation.
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 23rd of November, 2000.
3. 1. The worker has operated in all of the main areas of the plant over a long period of time and received no complaints from management in relation to his work or his behaviour prior to the alleged incidents.
2. The worker has operated in C Block for the past two years and this is the area where the alleged incidents took place. There were problems in this area in the past and the worker is adamant that he should not be the one who has to endure the indignity of a final written warning.
3. The Union is concerned that the final written warning is harsh in the extreme and the penalty does not match the alleged incidents.
4. 1. The Company carried out a thorough investigation of all relevant matters in accordance with the agreed procedures. All parties were given a fair and impartial hearing. In these circumstances the Company is satisfied that the findings of the investigation are correct. The Company is concerned that this incident occurred soon after the worker received a written warning in relation to a similar incident.
2. The Company fully accepts its responsibilities to protect the worker's welfare and believes that it has done so. His allegation that complaints were not dealt with was not substantiated. The evidence shows that he only made one complaint and subsequently withdrew it. Furthermore, he was advised that if he had any official complaints to make such complaints would be investigated. The only response the Company received was a letter from his Solicitor. The Company has shown that all matters raised in this letter had been already dealt with.
3. Against the background of the Company's responsibility to provide a safe working environment for all of its employees and to deal appropriately with any such complaints, the Company considers that in order to honour its responsibilities a final written warning is the minimum sanction that can be given. The Company asks the Court to uphold the Rights Commissioner's Recommendation.
The Court considered carefully the written and oral submissions made by the parties.
The Court supports the Company's right to issue a final warning in this case but recommends that it be taken off the Employee's record 21 months after date of issue.
The Rights Commissioner's Recommendation to be amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
4th December, 2000______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.