INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
SCHENKER IRELAND LTD
(REPRESENTED BY PURDY FITZGERALD SOLICITORS)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Mr McCarthy
1. Removal of Warning and Compensation
2. On the 25 April 2016 the Worker referred the dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on the 16 August 2016.
3. 1. The union sought the removal of any sanction given to the worker, in circumstances where he was not fully trained in the process for which it is alleged he breached.
2. The worker was not the senior employee in the process on the night of the incident in question.
3. The sanction applied by the company of a written warning for 18 months and the removal of the worker from shift three was disproportionate.
4. 1. The company afforded the worker the right to natural justice and fair procedures at all times during the investigation and disciplinary process.
2. The incident in question had a significant reputation and financial impact on the company.
3. The worker was removed from shift three for operational, health and safety reasons.
Background to the Dispute
The Worker has been employed by the Respondent since August 2003 as a warehouse operative. Apart from a minor accident that occurred in January 2015 while he was reversing a 20-foot truck, the Worker’s employment was uneventful and he was regarded as a good and reliable employee.
However, an incident occurred during a night shift on 30 June/1 July 2015 which gave rise to the within referral to the Court. The Worker was responsible, jointly with a colleague, to unload a consignment of 31 lots of silicon and to pass it through a clean room process on behalf of a significant client of the Respondent’s at that client’s premises. The process in question is subject to a detailed documented procedure which the operatives are trained in and which they must scrupulously comply with and document on each occasion. It appears that one of 31 boxes of silicon was not processed correctly on this occasion and as the relevant documentation was not correctly completed the box of silicone sheaves–for which the raw material alone is valued at some €60,000.00 – was unaccounted for and went missing.
The Respondent investigated the incident and the investigator recommended that the Worker should be subject to the disciplinary process for his alleged failure to follow the Respondent’s procedures. (The Worker’s colleague left his employment voluntarily in or around this time and was not, therefore, included in the disciplinary investigation that took place.) The Worker received a final written warning. The final written warning was to last for 12 months and was backdated to 1 July 2015. The Worker was also removed from shift work as the Respondent took the view that he would benefit from a higher level of supervision which he would receive while doing day work. The Worker appealed against the outcome of the disciplinary investigation. The allegations against him were upheld on the appeal. However, the sanction was amended to a written warning of 18 months’ duration to run retrospectively from 1 July 2015.
The Worker’s Trade Union representative submitted to the Court that the Worker had not been fully trained on the relevant procedure and in particular, had not been shown the specific form which the Respondent required to be completed as part of the operation to which he had been assigned. He argued that it was, therefore, unfair and unreasonable to impose a disciplinary sanction on the Worker for alleged non-compliance with a procedure in respect of which he had only received partial training. The representative also submitted that removing the Worker from shift work and placing him on day work – resulting in a loss of wages to the tune of €900.00 gross per month – in addition to placing a written warning on his file amounted to a double sanction and was, therefore, disproportionate.
The Respondent, on the other hand, submitted that the Worker had received comprehensive training in relation to the relevant procedures and documentation over a four-week period and that the Worker had signed a training form to confirm that he had read and understood the procedures in question.
The Respondent’s solicitor also gave details to the Court in relation to financial loss the Respondent incurred as a result of the incident and also damage done to its reputation and relationship with its client.
The Respondent denied that the removal of the Worker from shift work was in itself a sanction and pointed to the fact he has benefitted from the greater level of supervision available to him on day work and that his performance has been excellent in the period since the incident in question.
Having considered both parties’ written and oral submissions, the Court finds that the 18-month written warning placed on the Worker’s personnel file following his appeal of the original disciplinary sanction imposed on him is excessive. The Court, therefore, recommends that this written warning (which took effect from 1 July 2015) should be retrospectively reduced to a 12-month written warning. The Court further recommends that the Worker should be facilitated to transfer to the first shift work position that becomes available following the publication of this recommendation, in which the Worker expresses an interest and for which the he is an eligible candidate. This should be done in line with the Respondents’ normal procedures for filling such vacancies.
The Court so recommends.
Signed on behalf of the Labour Court
19 August 2016Deputy Chairman
Enquiries concerning this Recommendation should be addressed to Louise Shally, Court Secretary.