INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
- AND -
NATIONAL BUS AND RAIL UNION
Chairman: Mr Duffy
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Alleged unfair dismissal.
2. The dispute concerns one worker, a temporary bus driver, who commenced work with the Company, on 12 months' probation, on the 15th June, 1999. As a temporary employee, he was rostered as a "spare" driver, on a 6-day week, to cover the duties of regular drivers in the event of annual leave or off-duty for other reasons. On Friday, 10th September, 1999, the worker operated the out-based Birr service attached to Limerick Depot. A dispute arose when the worker was informed by an Inspector that he was rostered to work the following day. The Union accepts that the worker was properly rostered to work the Saturday. However, at the time, the worker himself believed he was off duty that day and, accordingly, had made alternative domestic arrangements. Following a heated argument, the worker departed the office and his turn of duty was carried out by another driver. On the 13th September, the worker was interviewed by the Services Manager following receipt of the Inspector's report. Subsequently, having considered the matter, the Services Manager issued his decision which stated, inter alia, the worker had violated his contract of employment and that the Company was not prepared to reinstate him.
An appeal for reinstatement, which was heard by the Area Manager on the 14th September, was disallowed and the Union was so-advised on the 15th September.
The dispute was referred, by the Union, to the Rights Commissioners Service but the Company declined to attend such an investigation. The Union, subsequently, referred the matter to the Labour Court, in accordance with Section 20 (1) of the Industrial Relations Act, 1969. The Labour Court carried out its investigation, in Limerick, on the 1st of March, 2000. Both parties made written submissions to the Court which were expanded upon, orally, during the course of the hearing.
3. 1. The dispute arose due to the worker's unfamiliarity with local agreements added to his belief that the Inspector in question bore a personal grudge against him. Additionally, the worker had made a domestic arrangement which was of great importance to his family and which he could not re-schedule.
2. At the outset of the dispute there seems to have been no effort made to advise the worker, in relation to local arrangements, in a calm manner. At a second meeting on the Friday, when the worker had a further altercation with the Chief and Roster Inspectors of the Depot, no consultation was made with any trade union representatives about the matter.
3. Following the meeting with the Services Manager, local union representatives were led to believe that the worker would receive a reprimand/penalty but would be reinstated as a driver.
4. The Union does not condone the behaviour of the worker. However, in the circumstances, the punishment he received was excessive.
4. 1. The worker was employed on 12 months' probation and this is stated in his contract of employment to the effect that termination within the probationary period shall be at the discretion of the Company. The factual details of the incidents between him and the Inspectors and his abandonment of his work on Friday, 10th September, and his failure to turn up for work on Saturday, 11th September, have not been disputed.
2. The worker had five separate contacts with his Supervisors over a number of hours and despite being given the opportunity to calm down and discuss his situation in a rational way, still chose to abandon his work for that Friday afternoon. Even after being able to consider his situation overnight he did not report for work on the Saturday morning. As far as the Company was concerned this was not the action of someone who, while on probation, was interested in long term employment with Bus Eireann. It was considered a very grave matter and the worker demonstrated an attitude of resentment towards supervision and instruction. He made it very clear that he was abandoning his job and that is what he did.
3. The Services Manager, in examining the whole matter, and, subsequently, the Area Manager as Appeals Officer under the Disciplinary Procedures, were faced with a decision about whether the worker was suitable or unsuitable for the job as bus driver. The decision, unfortunately, was that he was considered unsuitable and could not be reinstated. The Company treated him in a fair and just manner and gave him every opportunity to explain his situation and alter his course of action. He chose not to do this and he was dealt with in accordance with the Disciplinary Procedures, as agreed with the trade unions.
The Court has carefully considered the submissions of the parties in this case.
The Company concluded that the incident on the 10th September, 1999 amounted to abandonment by the worker of his employment. That conclusion was reached following a disciplinary interview held on 13th September, 1999. It was, subsequently, confirmed, on appeal, following a further interview with the Area Manager held on 14th September, 1999.
The Court accepts that the conduct of the worker on 10th September, 1999, had all the appearances of an abandonment of his employment. However, in the Court's view there were some extenuating circumstances, which should be taken into account.
While in no sense minimising or condoning the conduct of the employee, the Court considers that, in the particular circumstances of this case, he should be provided with a final opportunity to demonstrate his ability to provide satisfactory service to the Company.
The Court recommends that the Company offer the worker re-employment in the position which he previously held. This should be on the basis of a 12-month probation period commencing from the date of re-employment. The worker should also be regarded as having received a final warning as to his future conduct.
The offer of re-employment should remain open for a period of eight weeks from the date of this Recommendation, and if not taken up within that period should be regarded as withdrawn.
Finally, the Court notes that the procedures operated by the Company are currently under review. The Court would suggest that in that review, the parties should consider making provision for the reference of cases, such as this, to a Rights Commissioner or jointly to the Court. The Court would also direct the attention of the parties to the Code of Practice on Disciplinary Procedures (S.I. No. 117 of 1996) made under Section 42 of the Industrial Relations Act, 1990, and suggests that the provisions of that Code be incorporated in the appropriate Company procedures.
Signed on behalf of the Labour Court
29th March, 2000.______________________
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.