Labour Court Database __________________________________________________________________________________ File Number: CD86853 Case Number: LCR10941 Section / Act: S20(1) Parties: JOHN CULLEN & SONS LTD - and - MR. TWOHIG |
Claim by a worker that he was unfairly dismissed.
Recommendation:
7. The Court, having considered the submissions made by the
parties, is of the view that there was a lack of communication
with the claimant during his period of employment and that he
should have been made aware generally as to how he was progressing
in the job. It appears to the Court that broader business
requirements more than the claimant's performance determined his
dismissal. In the circumstances, the Court considers that some
compensation for his dismissal is appropriate. The Court
recommends, accordingly, that the Company should pay him an
ex-gratia amount equal to 2 weeks' pay in final settlement of his
claim.
Division: Mr Fitzgerald Mr Heffernan Mr Walsh
Text of Document__________________________________________________________________
CD86853 THE LABOUR COURT LCR10941
SECTION 20(1) INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. 10941
PARTIES: JOHN CULLEN AND SONS
and
A WORKER
Subject:
1. Claim by a worker that he was unfairly dismissed.
Background:
2. The worker was employed by the Company on 10th April, 1986, as
a van driver/operative, by way of verbal contract. The worker
says that it was intimated to him by the employer at the interview
for the job that he might be required to drive the Company's
articulated truck, that he should set about obtaining a 'H'
driving licence and that driving facilities would be made
available by the Company for the purposes of training. During his
employment the worker says no further comment was made on this
matter by the Company and, as he was led to believe that his work
performance was satisfactory during this time, he considered that
his chances of permanent employment with the Company looked
favourable. On 22nd August, 1986, the worker says he was advised
by the employer that one week's notice of termination of his
employment was being served. The grounds given were that, due to
high insurance costs, it was necessary to employ a driver who
possessed a H licence and who would also be available to take on
van driving activities. The worker says that assurances were
given by the Company that no other contributory factor led to the
decision to terminate his employment and a reference to this
effect was issued to the worker (copy supplied to the Court).
3. The worker contends that the termination of his employment for
the reasons given by the Company constitutes unfair dismissal.
The Company denies that the worker was unfairly dismissed and
contends that it employed him on a trial basis to determine his
suitability for a permanent position but that during his period of
employment with the Company he was found to be unsuitable for the
job, particularly as he was not qualified to drive an articulated
vehicle.
4. Following the Company's refusal to attend a Rights
Commissioner's hearing on the matter, the worker referred the
claim for unfair dismissal, under Section 20(1) of the Industrial
Relations Act, 1969, to the Labour Court for investigation and
recommendation. The worker agreed to be bound by the Court's
Recommendation. The Court investigated the dispute on 22nd
December, 1986.
Worker's arguments:
5. (a) The Company failed to give written conditions of
employment as obliged under the Minimum Notice and
Terms of Employment Act and in so doing have left the
terms of reference of the verbal contract somewhat
ambiguous.
(b) At no stage during the 4.50 months of employment or
indeed at interview was it ever intimated that the job
held temporary status.
(c) Notwithstanding the Company's rights to a probationary
period, at no stage was there an indication that
performance or conduct was below standard. On the
contrary, positive responses from the Company were
frequently in evidence.
(d) The employment of an additional driver to take over
van driver/operative activities was never indicated at
interview or at any other time thereafter up to the
date of dismissal.
(e) The letter of reference submitted by the Company would
appear to be a contradiction in terms. It referenced
that the worker left the Company. The worker never
offered notice of resignation, rather he was told his
job no longer existed.
(f) Realising the limitations of an employee with less
than 12 months service, in that he has no recourse
under the Unfair Dismissals Act 1977, it is felt
nevertheless that the worker's termination was both
summary and without moral and practical justification.
In these circumstances, he should receive some
recompense from the Company.
Company's arguments:
6. (a) The worker was engaged by the Company on a trial basis
to determine his suitability and this was specified to
him at all times. Throughout his period of employment
his progress was monitored by the Company on an
on-going basis. In the event, he proved unsuitable
for a permanent position and therefore, the Company
had no option but to terminate his employment.
(b) The Company required a driver for its articulated
truck urgently due to pressure of work. The worker
did not hold the appropriate driving licence to drive
such a truck nor did he take the necessary steps to
acquire such a licence. Therefore, the Company was
forced to engage another driver who possessed the
necessary licence and who has proved very satisfactory
on the basis that he is prepared to work long hours
and drive both the articulated truck and van as
required.
(c) The nature of the work carried out by the Company
involves working with stone, marble and granite. This
involves working in dusty conditions and given that
the worker has a respiratory problem such a working
environment would be totally unsuitable for him.
(d) In the circumstances, the Company was within its
rights to terminate the worker's employment when he
proved unsuitable during his trial period. Therefore,
he was not unfairly dismissed.
RECOMMENDATION:
7. The Court, having considered the submissions made by the
parties, is of the view that there was a lack of communication
with the claimant during his period of employment and that he
should have been made aware generally as to how he was progressing
in the job. It appears to the Court that broader business
requirements more than the claimant's performance determined his
dismissal. In the circumstances, the Court considers that some
compensation for his dismissal is appropriate. The Court
recommends, accordingly, that the Company should pay him an
ex-gratia amount equal to 2 weeks' pay in final settlement of his
claim.
~
Signed on behalf of the Labour Court
29th January, 1987 Nicholas Fitzgerald
T.McC./P.W. Deputy Chairman