AD8938

Labour Court Database __________________________________________________________________________________ File Number: CD89170 Case Number: AD8938 Section / Act: S13(9) Parties: THE BREAD BIN - and - A WORKER

Subject:
Appeal by the worker against Rights Commissioner's Recommendation BC 358/88 regarding alleged unfair dismissal.

Recommendation:
5. On the evidence of the submissions made the Court is of the
opinion that the Rights Commissioner's Recommendation should
stand. The Court so decides.

Division: Mr O'Connell Mr Collins Mr Devine

Text of Document__________________________________________________________________

CD89170 APPEAL DECISION NO AD3889


INDUSTRIAL RELATIONS ACT, 1969
SECTION 13(9)

PARTIES: THE BREAD BIN

AND

A WORKER



SUBJECT:
1. Appeal by the worker against Rights Commissioner's
Recommendation BC 358/88 regarding alleged unfair dismissal.


BACKGROUND:
2. The worker commenced employment with the Company as a shop
assistant on 22nd August 1988 and was paid #85 a week. In the
past the worker had been employed in other bakery/confectionery
businesses. On 5th November, 1988 the worker was dismissed and
given two weeks' pay in lieu of notice. The Company's position is
that the worker was employed for a trial period and on the basis
that she had the ability to run the shop as required. The Company
is of the opinion that the worker's standards were totally
unsatisfactory and that she was informed of this from the
beginning but as there was no improvement the worker was
dismissed. The worker's position is that she was not employed on
a trial basis and her standards were at all times satisfactory and
that the Company only complained about her work four/five days
before she received her notice. The worker subsequently referred
the matter to a Rights Commissioner for investigation and
recommendation. A Rights Commissioner investigated the dispute on
10th December, 1988 and issued the following recommendation-

"In the light of the above I must hold that the
burden of evidence to date as indicated to me that
the proprietor has failed to satisfy me that she
had, at the time of dismissing the worker, good
grounds for so doing. Therefore I must hold that
the dismissal was unfair. I do not however,
recommend reinstatement but I recommend as
follows:-


The proprietor to pay the worker the sum of #200
and this is to be accepted by her in full and final
settlement of all claims on the Company. I would
also urge the proprietor to let the worker have a
reference justifying to the period in which she was
employed by her."

(The proprietor and worker were referred to by name
in the Recommendation).

On 22nd February, 1989 the worker appealed the Rights
Commissioner's recommendation to the Labour Court for
investigation and recommendation under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
23rd March, 1989. A further hearing was held on 11th May, 1989 to
hear further evidence.


WORKER'S ARGUMENTS:
3. 1. When the proprietor interviewed the worker for the job she
told her that she wanted someone who would be able to look
after the shop. During the interview the proprietor checked
the worker's references from previous employments and was
quite satisfied with them. At no time during the interview
did she state that the position was on a trial basis.

2. Within a few days of the worker commencing employment the
proprietor only came into the shop to collect the money in the
evenings and filled in when the worker concerned and the other
assistant were on a day off. When the proprietor was on two
week's holiday the worker was left in charge of the shop. At
no time during her employment was the worker late for work nor
did she take time off and there were never any complaints
about her work. The proprietor only complained to the worker
about her standards four to five days before giving her
notice.


COMPANY'S ARGUMENTS:
4. 1. When the worker was interviewed for the position it was
explained to her that a worker with the ability to take charge
of the running of the shop was required. It was quite clearly
stated that a trial period would be essential and the worker
was agreeable to this. The worker's curriculum vitae
indicated that she had the necessary experience. However, it
now transpires that she was unsatisfactory in a previous
position in a similar business (details supplied to the
Court).

2. It was clear from the time that the worker commenced
employment that she was not capable of performing the duties
involved, and her hygiene standards, a high level of which is
necessary in the food business, were totally unsatisfactory.




These problems were pointed out to the worker from the
beginning but as there was no improvement it was obvious that
her employment would have to be terminated. The sum of #200
compensation recommended by the Rights Commissioner as
compensation to the worker is unrealistic. The business
involved is a small family one with financial problems.





DECISION:

5. On the evidence of the submissions made the Court is of the
opinion that the Rights Commissioner's Recommendation should
stand. The Court so decides.
~

Signed on behalf of the Labour Court,



John O'Connell
___25th___May,____1989. ___________________
U. M. / M. F. Deputy Chairman