INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SMURFIT CORRUGATED CASES
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR7748/02/GF
2. The worker was employed by the Company as a transport operative. The worker, was suspended without pay for three days for refusing to carry out a supervisors instruction. The Company claimed that the penalty was warranted. The Union claimed that the penalty imposed was too severe.
The matter was referred to the Rights Commissioner for investigation and recommendation. The Rights Commissioner's recommendation is as follows:-
"I believe that this issue has been grossly exaggerated and the penalty is out of all proportion to the offence. It might have been dealt with by the issuing of a written warning. I recommend the stated loss be restored to him €325.50. I reject the claim for compensation"
On the 12th, August, 2002, the Company appealed the Rights Commissioner's recommendation to the Labour Court under section 13 (9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 6th, November, 2002.
3. 1. The Company/Union agreement states:"an outline of offences warranting immediate dismissal" "refusal to carry out reasonable and lawful instructions. An employee must carry out the shift manager's lawful instructions even if he/she disagrees with the instruction (i.e. under protest)".
2. It is reasonable for a manager to ask one employee to convey a message to another employee.
3. The worker did not have a valid reason for refusing to comply with the request from his supervisor.
4. At all stages during this process, the Company followed agreed procedures and afforded the worker all his rights under the Company/Union Agreement and in accordance with natural justice.
5. The worker demonstrated a scant regard for the negotiated and recognised procedures and received a penalty, which was in proportion to the misconduct.
4. 1. The instruction was unreasonable for the following reasons: The worker was already performing a task which was required and fell within his job specification. Fetching other staff or passing on the Supervisors instructions is not a part of his duties. In similar circumstances, persons passing on second-hand instructions from Supervisors had been met with hostility. The worker could not be expected to extend any co-operation beyond the call of duty, while under the threat of discrimination over overtime.
2. By singling out the worker on the overtime issue, the Supervisor acted outside of his remit.
3. Any instruction that falls outside an individuals job specification is unreasonable and unlawful
4. The Union do not believe management exercised patience or reason in this instance and its actions in this regard do not uphold the spirit of the agreement.
5. The worker was penalised in a heavy-handed and unfair manner.
In his recommendation the Rights Commissioner accepted that the worker concerned was guilty of misconduct but felt that the sanction imposed was disproportionate. In normal circumstances the Court would be inclined to share that view.
It is noted, however, that the worker does not accept that he is obliged to follow instructions issued by his supervisor, under protest if necessary, as is clearly provided for in the Company/Union agreement. In that regard the worker told the Court that if issued with similar instructions in the future he would again refuse.
In the Court's view the stance taken by the worker is unsustainable and undermines the basis on which the Rights Commissioner's Recommendation was predicated. In these circumstances the Court is of the view that the Company's position is reasonable and the appeal should be allowed.
The appeal is allowed and the Company's decision is upheld.
Signed on behalf of the Labour Court
15th, November, 2002______________________
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.