FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CASTOLIN EUTECTIC IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner r-072535-ir-08/JOC.
BACKGROUND:
2. The Company employs 72 Employees and is the largest of six supply centres to the MEC Group which is headquartered in Frankfurt, Germany. In Dublin the operation develops and manufactures welding and coating electrodes, thermal fused gas and water atomised metal spray powder and fluxed cord wires. The company has been in operation for over 45 years and in this time has maintained an excellent record in relation to health and safety in the work place. An incident took place in the powders department where water and gas atomised metal spray powder is manufactured in an environment where temperatures can reach up to 1,600 Degrees Celsius. A hatch door was left open, thus endangering staff involved in the process. The fact that the hatch door was left open is not in dispute only the disciplinary procedures that followed as a result.
The issue involves a claim by the Union. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 21st May, 2009, the Rights Commissioner issued his Recommendation as follows:
"I uphold the respondent's position on the warning that was issued to the claimant.
On the expenses the claimant be given €175 in full and final settlement, this recommendation on expenses is without precedent and cannot be used in any future case that may arise."
On the 23rd June, 2009 the Worker appealed the Rights Commissioners 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 2nd September, 2009.
UNION'S ARGUMENTS:
3 1. The Union feel that a Final Written Warning is too severe as there are on record some examples of lesser punishment for actions which had serious safety implications.
2. The hatch door being left open was an accident and not a flagrant disregard of Health and Safety procedures.
3. By denying the Claimants attendance at the appeal hearing means that he was also denied the opportunity to outline the circumstances that led to the incident and thus allowing the opportunity of having the warning rescinded.
COMPANY'S ARGUMENTS:
4. 1. Operating procedures were not complied with and consequently the Claimants actions had the potential to seriously injure himself or other Employees.
2. A full Disciplinary Investigation Meeting took place which resulted in a final written warning letter been issued to the Claimant. A decision to retrain the Claimant in the operation of the water atomiser section was taken.
3. It is regrettable that the Claimant is more concerned with himself than with health and safety issues. The Claimant was treated fairly and in accordance with the Company's procedures.
DECISION:
Having regard to all the circumstances of this case the Court is satisfied that the evidence of what occurred and the gravity of the incident support the conclusions reached by the Rights Commissioner.
Accordingly, the Court can see no basis upon which it could interfere with the recommendation of the Rights Commissioner.
The Court also accepts that the failure to allow the Claimant to attend the internal appeal hearing was unfair. It is, however, noted that this was in accordance with the established practice within the employment with which the Union had not previously taken issue. the Court strongly urges the parties to ensure that in all future cases an employee pursuing an internal disciplinary appeal is afforded an opportunity to attend and speak in his or her own defence.
The appeal is disallowed and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
23rd September, 2009.______________________
JF.Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.