INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
- AND -
TECHNICAL, ENGINEERING AND ELECTRICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Dispute concerning the use of the Disciplinary Procedure.
2. The worker concerned commenced employment as a quality inspector in January, 1985. The dispute relates to disciplinary action initiated by the Company against the worker in respect of absence from the workplace. The claimant has previously been allowed time off/permitted absence in order to look after his wife who has a serious medical condition. Both parties accept that an informal permitted absence pattern has developed over the years. Management maintains that since 2002 the Company has sought to address the issue on a more permanent basis. A number of meetings were held to try to get an agreed resolution. The Union claims that by April, 2004 the claimant's attendance had improved to a satisfactory level and that the parties agreed no further action was required but that the matter would be kept under review. The Company claims that despite its offer of a number of options to the claimant at a meeting in May, 2004 no satisfactory agreement was reached in relation to his attendance. The Company issued a verbal warning to the claimant on the 26th May, 2004. The Union rejected the Company's decision to issue the claimant with the verbal warning. The dispute was referred to the Labour Relations Commission. A conciliation conference was held but agreement was not reached. The dispute was referred to the Labour Court on the 29th October, 2004 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Court hearing was held on the 14th January, 2005.
3. 1. The claimant has been subjected to ongoing bullying by a member of Management in the course of the performance of his duties. This has arisen because he is the senior shop steward and relates to a meeting on the 12th May, 2004 in which the Manager and the claimant were involved in a number of exchanges on work related matters. The issue of the worker's attendance had been resolved satisfactorily prior to that meeting and the verbal warning was only issued after this incident took place.
2. The claimant is a long serving employee with an excellent record of time keeping and work performance. The only leave that is now being used in a spurious way, to justify Management's conduct and the use of the disciplinary procedures against him, is leave that at all times had the prior agreement of the Company. Therefore the use of the disciplinary procedure is unwarranted and inappropriate. It should be rescinded.
4. 1. The Company has held numerous meetings with the Union in an effort to come to an agreed arrangement with the claimant in relation to his attendance. It has offered the claimant numerous options towards mutually agreed resolution of his attendance situation, in keeping with Company policy of sympathetic treatment of all employees with special or domestic difficulties. The Company disputes the Union's contention that there was any agreement between the parties in April, 2004, that the attendance levels were satisfactory and that no further action was required.
2. The Company cannot operate on the basis of the complete unpredictability of a worker's attendance.
3. The Company categorically rejects the Union's claim that the worker is being selectively victimised /bullied by a member of Management because of his status as senior shop steward.
4. The Disciplinary Code is used as a last resort. The Company made protracted and fruitless efforts to get the claimant to address his attendance situation in a manner acceptable to both parties. If the claimant's attendance continues to improve, as it has done since the issue of the verbal warning, the warning will lapse in May, 2005.
The Union states that the dispute before the Court concerns the inappropriate use of the Company's disciplinary procedure which it claims was invoked to bring about the dismissal of the claimant, principally due to his status as a TEEU Convenor and Chairperson of the Group of Unions Shop Steward's Committee. The Union submitted background information to the claim.
The Company stated to the Court that the use of the disciplinary procedure was appropriate in the circumstances where the claimant's attendance at work record for the period 2001-2004 was a major concern for the Employer. It states that a verbal warning was invoked due to the claimant's inflexibility and refusal to discuss options to address his need for leave of absence, which is attributed to his personal circumstances.
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that under the circumstances it was reasonable for the Company to attempt to formalise a situation, which in its view had become unsustainable and difficult to manage, mainly due to the unpredictable level of absences incurred. The Court is of the view that the disciplinary procedures adopted by the Company were appropriate in these circumstances. The Court does not accept that the claimant was treated differently than any other employee, in similar circumstances.
However, the Court notes that the poor relationship between the claimant and members of management continues and the need for permitted time off for the claimant may arise in the future. Therefore, in an effort to resolve this dispute the Court recommends the following:
- the parties should make every effort to resolve the personal difficulties between the claimant and members of management,
- the claimant must take responsibility for managing his own affairs and submit a formal request for structured time off and management should endeavour to meet that request and accommodate the claimant's need as far as possible - if necessary, the parties should avail of the internal employee assistance services to assist in that regard,
- the verbal warning should be considered as lapsed from the date of this recommendation; accordingly, the warning should be removed from his personnel file.
The Court so recommends.
Signed on behalf of the Labour Court
19th January, 2005______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.