Labour Court Database __________________________________________________________________________________ File Number: CD89240 Case Number: AD8935 Section / Act: S13(9) Parties: KONA PRODUCTS LIMITED - and - A WORKER |
Appeal by the worker against Rights Commissioner's recommendation No. BC 255/1988.
Recommendation:
5. The Court having considered the written submissions from both
parties and the verbal submissions made at the hearing does not
find grounds for altering the Rights Commissioners recommendation.
The Court accordingly, rejects the appeal and upholds the
recommendation.
Division: Ms Owens Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD89240 APPEAL DECISION NO. AD3589
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: KONA PRODUCTS LIMITED
and
A WORKER
SUBJECT:
1. Appeal by the worker against Rights Commissioner's
recommendation No. BC 255/1988.
BACKGROUND:
2. The worker concerned in this dispute commenced employment with
the Company in March, 1988, as a truck driver. He had heard of
the vacancy by word of mouth. His job entailed the delivery of
material for ice-cream cone machines. The worker contends that he
informed his employer in April, 1988 of his intention to take
holidays in July. He says that this was necessary because his
fiancee had been presented with a holiday for two by her work
mates, and that this had been booked in March without his
knowledge. On being informed of the employees intention to take
holidays the owner said he would consider the matter. In June the
owner raised the matter with the worker, and pointed out that July
was the Company's peak period, and that he would be required at
this time. The worker went on his holidays, and on his return was
informed that a replacement had been hired. He received neither
holiday pay or pay in lieu of notice. The worker appealed the
matter to a Rights Commissioner, who issued the following
recommendation in the matter.
"In the light of the above I believe the worker was unfairly
dismissed from his employment but that he, by his own actions
and behaviour contributed to a large extent to his own
difficulties.
I therefore recommend that Kona Products Limited pay to the
worker the sum of #300 and that this is accepted by the worker
in full and final settlement of all claims on the Company
including those relating to notice and holiday pay."
On 3rd April, 1989 the worker appealed the Rights Commissioner's
recommendation to the Labour Court, under Section 13(9) of the
Industrial Relations Act, 1969, seeking enhanced compensation. A
Court hearing took place in Dublin on 27th April, 1989.
WORKER'S ARGUMENTS:
3. 1. The worker informed his employer in good time (in April)
of his intention to take holidays. The timing of his holidays
were not a matter of choice, since they had been booked
previously without his knowledge. When he first informed his
employer of his intention to take holidays he was not told
that he could not go. Subsequently, it was too late to change
his plans as he was committed.
2. The worker was informed on his return that he had lost his
job, and that there was a replacement for him. He was given
no notice, and no holiday pay. Despite the recommendation of
the Rights Commissioner, the Company has made no attempt to
pay him what was recommended. That was over nine months ago.
The worker believes that in the light of his treatment, and
the delay in acting upon the Rights Commissioner's
recommendation, he should receive enhanced monetary
compensation.
COMPANY'S ARGUMENTS:
4. 1. The worker was informed of the job conditions and
requirements prior to starting. He was aware that the job was
highly seasonal and weather dependent, and must have known
that July would most likely be one of the Company's peak
periods. The worker was recommended for the job by another
employee of the Company. The Company facilitated the worker
in every way, including helping him to obtain his D. licence.
2. The worker was only three weeks in the Company, when he
raised the question of holidays. The owner was very surprised
at the request and said that they would discuss it later.
When he next raised the issue he was told that the holidays
were booked. The Company never intended to deny the worker
his holiday entitlements, but regard had to be had for the
needs of the business at its most sensitive period.
DECISION:
5. The Court having considered the written submissions from both
parties and the verbal submissions made at the hearing does not
find grounds for altering the Rights Commissioners recommendation.
The Court accordingly, rejects the appeal and upholds the
recommendation.
~
Signed on behalf of the Labour Court
Evelyn Owens
_____________________
15th May, 1989. Deputy Chairman
P.F./J.C.