Labour Court Database __________________________________________________________________________________ File Number: CD87357 Case Number: AD8764 Section / Act: S13(9) Parties: NORTH KERRY MILK PRODUCTS LTD - and - ITGWU |
Appeal by the Union on behalf of a worker against Rights Commissioner's recommendation No. CM/15,863 concerning alleged unfair dismissal.
Recommendation:
6. The Court, having considered the submissions made by the
parties, finds no grounds for altering the Rights Commissioner's
recommendation.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Mr Devine
Text of Document__________________________________________________________________
CD87357 THE LABOUR COURT AD6487
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 64 OF 1987
Parties: NORTH KERRY MILK PRODUCTS LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Union on behalf of a worker against Rights
Commissioner's recommendation No. CM/15,863 concerning alleged
unfair dismissal.
Background:
2. The worker concerned was employed by the Company, as a
seasonal worker, on 28th March, 1983. He was re-employed for the
1984 and 1985 seasons. (During the 1984 season the worker was
suspended from work on 30th October, 1984, for four days following
a serious incident). On 19th April, 1985, he telephoned the
Company to say he could not attend work the following day and had
arranged a replacement. He was informed by his manager that this
was not acceptable and that he should report for work or he might
lose his job. However, he did not return to work until 26th
April, 1985, when he submitted a medical certificate covering him
from 18th to 26th April, 1985, inclusive. Medical certificates
have to be submitted to the Company within three days of absence.
The worker had been at work on 18th/19th April, 1985 and had not
complained of illness either then or when he telephoned his
manager on the 19th April, explaining that he needed to have the
week-end off. The Company dismissed him on 26th May, 1985. The
Union contended that the Company was unreasonable in not accepting
the worker's replacement for work on 20th April, 1985, as this is
usually granted when a person requires time-off. The worker
concerned had endeavoured to speak to his shift supervisor when
he telephoned on 19th April, 1985 and to conform to the correct
procedures. He was genuinely ill, which is why he got a medical
certificate. The Union contended that the certificate was not
submitted within the three days because the worker was hoping to
return to work every day.
3. The matter was referred to a Rights Commissioner for
investigation and recommendation. Following an investigation on
26th July, 1985, the Rights Commissioner issued the following
recommendation on 29th July, 1985:-
"5. He knew from the October warning that he was on his
second last chance but he defied the specific
management directive to be at work on Saturday 20th
April, despite having been told that otherwise his job
was in jeopardy. And whether he was ill or not it is
evident that he wanted the Saturday off anyhow. This
event of itself gave management adequate grounds for
dismissal.
6. In addition he was absent without permission up to
26th April, because that is what his absence became
when he did not submit a medical certificate in time.
7. For these reasons I must uphold the Company's
decision to dismiss him."
The Rights Commissioner's recommendation was not acceptable to the
Union, who on 23rd April, 1987, appealed it to the Labour Court,
under Section 13(9) of the Industrial Relations Act, 1969. A
Court hearing took place on 29th July, 1987 in Tralee.
Union's arguments:
4. (a) The worker telephoned the Company looking for his
supervisor, to advise him that he had arranged a
replacement for himself on the evening shift of
Saturday 20th April, 1985. He understood that this
procedure was acceptable. The Union believes that had
he made contact with the supervisor, the problem would
not have arisen. However, he made contact with his
departmental manager and tried, without success, to
convince the manager of his need for the week-end off
because he had been suffering from a severe stomach
upset for a number of days.
(b) As a result of this he attended his doctor on 22nd
April, 1985, and got a medical certificate.
Unfortunately, he did not forward this to the Company
as he was hoping to return to work every day. In view
of this the Union believes that at most the worker
should have been warned for his conduct and not
dismissed.
Company's arguments:
5. (i) The Company maintains that the worker defied a specific
management directive to report for work on 20th April,
1985, eventhough, he was informed that his job was at
stake.
(ii) His absence, until 26th April, 1985, was in breach of
Company rules and regulations, and amounted to
unexcused absence as no contact was made with the
Company, or no medical certificate was produced until
he returned.
(iii) At a meeting with the worker concerned, subsequent to
his return, he was informed that the medical
certificate and his overall behaviour was not
acceptable and could no longer be tolerated. At this
meeting the worker admitted that the certificate was
not genuine, in relation to the illness, but that he
had to have the week-end off.
(iv) The worker had previously received verbal warnings in
September, 1984, regarding his poor attitude to his
work and his tendency to be disruptive. He had also
been suspended on 30th October, 1984, for four days,
following a serious incident.
DECISION:
6. The Court, having considered the submissions made by the
parties, finds no grounds for altering the Rights Commissioner's
recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
_______________________
Deputy Chairman
14th August, 1987
B.O'N./J.C.