Labour Court Database __________________________________________________________________________________ File Number: CD88410 Case Number: AD8835 Section / Act: S13(9) Parties: IRISH CULTURE AND CRAFT WORK LIMITED - and - A WORKER |
Appeal by a worker against Rights Commissioner's Recommendation CW62/88 concerning alleged unfair dismissal.
Recommendation:
8. The Court, having carefully considered the submissions made by
the parties and noting all the circumstances pertaining in this
case, has come to the view that the Rights Commissioner's
recommendation should stand.
The Court so decides.
Division: Mr Fitzgerald Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD88410 APPEAL DECISION NO.AD3588
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: IRISH CULTURE AND CRAFT WORK LIMITED
and
A WORKER
SUBJECT:
1. Appeal by a worker against Rights Commissioner's
Recommendation CW62/88 concerning alleged unfair dismissal.
BACKGROUND:
2. The worker commenced employment with the Company on 5th May,
1987. She was employed as a secretary and when asked agreed to
help out on the shop floor, packing and dispatching orders.
3. On 20th December, 1987, the worker informed her employer that
she would not be reporting for work due to illness. On 24th
February, 1988, her doctor certified her fit for work. On her
return to work her employer informed her that as she had been out
of work for so long it was necessary to re-employ someone else and
that there was now no work for her at that time. The employer
further informed her that he expected to be in a position to
re-employ her in April as he was computerising the office system.
4. The worker referred her case to a Rights Commissioner for
investigation and recommendation. Following a hearing held on
23rd March and 27th April, 1988, the Rights Commissioner issued
the following recommendation dated 4th May, 1988 -
"It was apparent that the worker's job was not at risk until
she became ill she believed she had an understanding that her
job was being held for her until she recovered. I believe
that the important decision was when it was decided to retain
the replacement girl. Prior to this decision the employer
did not advise the worker or seek a report concerning the
time of her probable fitness to return to work, from her
doctor. In the circumstances when there is prolonger, or
even intermittent, incapacity it can be fair to dismiss. But
in all circumstances the person concerned can claim a right
to be told and to make representations before a final
decision is taken. The payments made amount to little more
than her statutory entitlements for holidays and minimum
notice. On balance I consider that the Company acted in
haste and without adopting a fair procedure.
"I recommend that the Company offers and the worker accepts
the sum of £400 in respect of this dispute".
The worker was referred to by name in the Rights Commissioner's
recommendation.
5. The worker appealed the recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. The
Court heard the appeal in Kildare on 21st June, 1988.
WORKER'S ARGUMENTS:
6. 1. The worker carried out her duties in a satisfactory
manner and her employer did not have any grounds for
complaint about her work.
2. The worker was absent from work due to illness. She was
not made aware that her job was gone until she reported back
for work on 24th February, 1988. In fact, she was given the
impression while out sick that her job was still available
for her. Under the circumstances she considers the amount of
compensation awarded by the Rights Commissioner to be
insufficient.
COMPANY'S ARGUMENTS:
7. 1. Due to the length of time the worker was out sick it was
necessary to re-employ somebody else. The Company is a small
Company and it could not afford to employ the two workers.
2. At the time the worker was absent due to illness it was
considered inappropriate to inform her that her job was gone
as the employer believed that to do so would aggravate her
illness. When the worker reported for work she was promised
that an effort would be made to re-employ her in April,
1988, when the computerisation programme had been carried
out.
3. The Company considers that it did not act in an
unreasonable manner and that it had been acting in the best
interests of the worker.
DECISION:
8. The Court, having carefully considered the submissions made by
the parties and noting all the circumstances pertaining in this
case, has come to the view that the Rights Commissioner's
recommendation should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
4th July, 1988 Nicholas Fitzgerald
M.D./P.W. Deputy Chairman