Labour Court Database __________________________________________________________________________________ File Number: CD87106 Case Number: AD8727 Section / Act: S13(9) Parties: ELPHIN HOTEL - and - MR. M. MCCANN;HAUGHTONS SOLICITORS |
Appeal against Rights Commissioner's Recommendation No. DM115/86 arising out of a dismissal.
Recommendation:
5. The Court notes that there is an extensive element of
diametrically opposed versions of the events which culminated in
the dismissal. It also notes that there is a disparity in the
basis of calculations by the parties of monies due, exclusive of
the amount referred to in the final paragraph of the Rights
Commissioner's Recommendation, which is the subject of
disagreement in it's own right. In these circumstances, the Court
can find no grounds for altering the amounts referred to in the
first paragraph of the Rights Commissioner's Recommendation.
In relation to the appeals in general, the Court, having
considered all aspects of the case, has come to the conclusion
that the Rights Commissioner, in his assessment of the original
claim, arrived at a fair and reasonable recommendation.
The Court therefore decides that the appeal be rejected and that
the Rights Commissioner's Recommendation be upheld.
Division: Ms Owens Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD87106 THE LABOUR COURT AD27/87
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 27 OF 1987
Parties: ELPHIN HOTEL
and
A WORKER
Subject:
1. Appeal against Rights Commissioner's Recommendation No.
DM115/86 arising out of a dismissal.
Background:
2. The worker concerned was employed as a housekeeper by the
Hotel from 11th May, 1986, to 3rd September, 1986. On the latter
date, the worker alleges that she was approached by the owner of
the Hotel, who accused her of failing to clean the floor of the
disco bar. The worker replied that she had done so, but the owner
would not accept her word and dismissed her.
The owner said that he asked her if she had done the room and she
replied yes. He then found the floor not done. In view of
previous warnings and shortcomings he dismissed her.
The worker referred the matter to a Rights Commissioner for
investigation, seeking the following:-
- #165.66 payment due for public holidays, holidays, minimum
notice and an error in last week's pay,
- #174.90 due for rest days worked,
- #1,000 compensation for unfair dismissal and being unemployed
for 10 weeks.
The Hotel agreed that the sum of #165.66 was due to the employee
but disputed any further payments.
The Rights Commissioner issued the following recommendation on
18th December, 1986.
"I recommend that the Hotel should now pay to the employee
concerned the sum of #165.66, which it is agreed is due
for Public Holidays, holidays, etc.
In regard to the #174.90 due for rest days which the
employee claims she worked, I am not satisfied entirely
that this claim is established or that the issue had been
raised while she was still in the employment. I am not,
therefore, recommending in favour of this claim.
I am completely satisfied that the owner's behaviour in
instantly dismissing the employee concerned was out of
proportion to the alleged failure to clean the floor of
the disco bar. The incident took place on Wednesday
morning and the room had previously been used on Sunday
night. The manageress was unable to satisfy me that she
had inspected the room in the intervening two days, and of
course she had not been consulted before the owner
peremptorily sacked the employee concerned. With regard
to the alleged previous shortcomings of the employee's
work, I consider that the owner and his manageress
expected far too much from this girl of 16.50 years of age.
In all the circumstances, I consider that the employee is
entitled to compensation of #600 and I recommend that the
owner should pay her this amount."
(The worker was mentioned by name in the recommendation).
On 12th February, 1987, the worker concerned appealed the
recommendation under Section 13(9) of the Industrial Relations
Act, 1969. A Labour Court hearing took place on 11th March, 1987.
Worker's arguments:
3. (a) The worker had carried out her functions as a
housekeeper to a standard above and beyond that which
might have been expected of her, especially in relation
to her willingness to work overtime. In this regard,
during the period she worked at the Hotel, she worked
2-3 hours extra on at least 2 days per week. She also
worked a 7th day on 12 out of the 16 weeks during which
time she was employed. Two of these days being bank
holidays. The worker concerned should be paid for the
extra days worked.
(b) The worker's employment agreement either explicitly
implied or statutorily guaranteed 1.50 days pay per month
in respect of holiday pay. Therefore, six days holiday
pay is due to her.
(c) The worker was dismissed instantly by the owner. Normal
practice is to give one week's notice or payment in lieu
of notice. In this case neither option was carried out
by the owner.
(d) The worker concerned is entitled to compensation for the
suffering and embarrassment caused due to her wrongful
dismissal. She did not obtain new employment for 10
weeks after her dismissal and should be compensated for
the loss of earnings during that period.
Hotel's arguments:
4. (i) The worker concerned was employed as a housekeeper on a
one month trial basis. During this trial period her
work was only fair. The owner told the worker that he
did not think her work was satisfactory but that he
would be prepared to keep her on a part time basis, if
her work improved.
(ii) The Hotel advertised and held interviews for another
housekeeper and a new housekeeper was employed. The
worker concerned continued to work full time while the
new housekeeper was getting used to the routine. The
new housekeeper only stayed for a couple of weeks, for
personal reasons. The owner was still unhappy with the
worker's performance of her duties, however, the
manageress undertook to assist her and help her improve.
(iii) The worker's performance did not improve and the
manageress gave her at least 6 verbal warnings that she
would be dismissed if she did not improve. The last
warning was given one week before her actual dismissal.
When the owner carried out a routine check, he
discovered that the worker concerned had not carried out
a task given to her. The owner felt that, in view of
the worker's failure to improve, despite warnings that
she would be let go, he had no alternative but to
dismiss her.
(iv) The worker concerned was employed to work a six day
week. At times the worker remained around the Hotel
after she was finished work. The manageress pointed out
to her that she was free to do so but it was not
required or expected. At no stage was the worker asked
to work overtime or work on her rest days, and at no
time did she make any claim for additional pay for
working rest days.
(v) None of the duties that the worker was employed to do
should have been beyond the capabilities of a girl of
her age. Such duties are regularly carried out by girls
of this age.
Decision:
5. The Court notes that there is an extensive element of
diametrically opposed versions of the events which culminated in
the dismissal. It also notes that there is a disparity in the
basis of calculations by the parties of monies due, exclusive of
the amount referred to in the final paragraph of the Rights
Commissioner's Recommendation, which is the subject of
disagreement in it's own right. In these circumstances, the Court
can find no grounds for altering the amounts referred to in the
first paragraph of the Rights Commissioner's Recommendation.
In relation to the appeals in general, the Court, having
considered all aspects of the case, has come to the conclusion
that the Rights Commissioner, in his assessment of the original
claim, arrived at a fair and reasonable recommendation.
The Court therefore decides that the appeal be rejected and that
the Rights Commissioner's Recommendation be upheld.
~
Signed on behalf of the Labour Court
Evelyn Owens
------------------
Deputy Chairman
6th April, 1987
BO'N/PG