INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
TWO-WAY FORWARDING AND LOGISTICS LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
AUTOMOBILE GENERAL ENGINEERING & MECHANICAL OPERATIVE UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's recommendation IR8084/02/LM.
2. The issue involves the worker employed in a supervisory position with the Company. On the 10th April, 2002, the worker availed of an extended lunch break. Following an investigatory meeting on the 11th April, 2002, the worker was placed on suspension with pay. A disciplinary meeting was held on the 17th April, 2002, which resulted in the worker receiving a written warning and demotion to a position of General Operative on a reduced salary. The worker was unsuccessful in his appeal to the Company. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 5th June, 2003, the Rights Commissioner issued her recommendation as follows:
“Having considered the oral and written evidence presented at the hearing and taking all the circumstances into account I find the sanctions imposed by the Company on the claimant excessive. (It is noted that the worker has since left the Company). In the circumstances the worker to be paid the difference in salary between the supervisor grade and that of general operative for the period of demotion".
(The worker was named in the Rights Commissioner's recommendation).
On the 11th July, 2003 the Company appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 20th November, 2003.
3.1 The worker, by his actions showed a complete lack of care for the business of the Company. He completely breached the trust which the Company had in him.
2. He admitted what he had done was wrong and did not constitute behaviour expected of a Supervisor. He had made no effort to ask for permission to leave the site thereby ensuring that there was no cover for his job. He also failed to volunteer the fact he had left the site without permission upon his return, thereby leading to the belief that he knew at the time what he was doing was wrong.
3. The Company, believes that their actions were justified. They felt they could not trust him in a supervisory position.
4. The Company, reassured the worker that his final written warning would not be used as a means to dismiss him from the Company for a trivial reason, and stated he could be promoted at a future date.
5. The Company maintains the worker's actions warranted the sanction imposed.
4.1 The Rights Commissioner in her deliberations found in favour of the worker, and stated that the sanctions imposed were excessive.
2. The worker started work on the 10th April, 2002 at 07.00 and worked through until 14.00, he left the premises for a late lunch with 2 others just after 14.00. The worker freely admitted at the hearing that what he had done was incorrect, and was the first time such an incident happened. He gave an undertaking it would not happen again.
3. He informed Management that he was in contact with the warehouse at all times during his absence by mobile phone and had in fact taken 3 or 4 calls from the warehouse.
4. The Company did not take into account his diligence of being at work from 07.00 to 19.00 every day, that he also works Saturdays. He is also a key holder for the Company and can be called out to alarm activations at any time.
5. The worker was not allowed a representative at the meeting, he was allowed bring a colleague, only as an observer.
6.The Union claims that disciplinary procedures were not following correctly and the Company is in breach of their own procedures. In terms of proportionate penalties a once off issue of coming back late after lunch does not warrant demotion and reduction in pay.
Having considered the oral and written submissions of the parties the Court concurs with the Rights Commissioner that the sanctions imposed on the worker were excessive and that demotion was unwarranted. Accordingly, the Court upholds the Rights Commissioner's recommendation that the worker be paid the difference between the rate prior to his demotion and that of the general operative, from the date of demotion to the worker's termination of employment.
The employer's appeal fails. The Court so decides.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.