AD9030

Subject:
Appeal by the worker against Rights Commissioner's Recommendation CW 59/90 concerning alleged unfair dismissal.

Recommendation:
5. The Court having considered all of the views of the parties
is of the view that in all the circumstances the claimant was
unfairly dismissed. However the Court does not consider that
reinstatement would be a remedy in this case. The Court considers
the Rights Commissioner's recommendation of #400 should be
increased to #800 and arrangements should be made by the Company
to provide the claimant with a suitable reference.

The Court so decides.

Division: MrMcGrath Mr Keogh Mr Walsh

Text of Document__________________________________________________________________

CD90331 APPEAL DECISION NO. AD3090


INDUSTRIAL RELATIONS ACT 1969
SECTION 13(9)

PARTIES: MULDOWNEY PARTNERS

AND

A WORKER


SUBJECT:
1. Appeal by the worker against Rights Commissioner's
Recommendation CW 59/90 concerning alleged unfair dismissal.


BACKGROUND:
2. The worker concerned was employed for eleven months in the
Company's outlet in Rathfarnham Shopping Centre. Her main duties
were buying for and merchandising the shop's card department. In
addition, she also carried out general shop duties. On the 9th
March, 1990, she was given one week's notice on the grounds of
dissatisfaction with her work, bad time-keeping and a poor sick
leave record. She alleged her dismissal was unfair and referred
the case to a Rights Commissioner for investigation and
recommendation.

3. The Rights Commissioner, having investigated the dispute on
the 11th April, 1990, issued the following Findings and
Recommendation on the 12th April:-

"I must presume that the claimant was a satisfactory
employee who had passed her probationary period. Nothing
was recorded in writing in a log book or diary.
Similarly if there were any reprimands or warnings they
were not recorded. It is difficult to understand that
the Partnership just drifted into the position when she
was dismissed. The dismissal followed a fairly trivial
lateness incident. I have not been shown any conclusive
evidence that her work performance was poor or the
subject of warnings. On the other hand if she had a
lateness problem and it had been systematically brought
to her attention with firm warnings regarding any
repetition then such a dismissal could be fair. I
recommend that Muldowney Partners offer and she accepts
the sum of #400 in settlement of this dispute."


The worker appealed this Recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969 on the grounds
that the compensation awarded was insufficient. The Court heard
the appeal on the 11th July, 1990.


WORKER'S ARGUMENTS:
3. 1. The worker finds it strange that if her work was poor it
took 11 months for Management to decide to dismiss her. It is
her understanding that a three month probation period is long
enough for deciding such matters.

2. When she joined the Company she adhered to the procedures
already established and tried to do her work within this
environment. This proved impossible and she found it
necessary to have a meeting with Management where she
explained that she needed at least three hours per day in the
card area in order to keep it running properly. It was agreed
that she should have this time in the morning as the shop was
quieter then. This agreement lasted about two weeks during
which time figures improved to everybody's satisfaction.
After this however, she found it extremely difficult to get
the time she needed without interruption. She was constantly
called away from her work to serve on the counter, sweep the
floor or help someone else with their work. This resulted in
the work she was specifically employed for being neglected.

3. The card department was extremely disorganised when the
worker first joined the Company (details supplied to the
Court). This resulted in the entire area having to be
re-organised and a stocktaking system set up.

4. During her time with the Company the worker did her utmost
to be punctual and never received any indication that her
time-keeping was in any way unsatisfactory, let alone a
warning to this effect. On any occasion that she was late,
she always made this known to Management immediately and
attended to her work as promptly as possible.

5. The worker did not take unnecessary sick leave and on a
number of occasions actually went to work against her doctor's
advice. Any illness she suffered during her service with the
Company was, in her opinion, due to the lack of heating in the
shop. The worker, together with other members of the staff,
brought this matter to the attention of Management on several
occasions but nothing was done about it. The illnesses
suffered, chest and sinus infections and tonsillitis can all
be related to prolonged exposure to extreme cold. Doctors'
certificates were always submitted.

6. The Company's actions have resulted in the worker
suffering substantial loss of earnings. Furthermore, her name
and reputation have been damaged due to the fact that the
Company refuse to give her a suitable reference.




MANAGEMENT'S ARGUMENTS:
5. 1. The worker was spoken to on several occasions regarding
her work performance, which was considered far too slow. The
person who replaced her can handle the duties quicker and with
no difficulties. Contrary to what the worker says, it was not
her role to merchandise the card department. That is a
function of the suppliers.

2. The worker was made Assistant Manageress in October, 1989,
but was subsequently demoted as her work in that area was also
not of a high enough standard.

3. The worker was frequently late for work and was spoken
to/warned in this respect several times. In addition, the
Company considered her sick leave record unsatisfactory.




DECISION:

5. The Court having considered all of the views of the parties
is of the view that in all the circumstances the claimant was
unfairly dismissed. However the Court does not consider that
reinstatement would be a remedy in this case. The Court considers
the Rights Commissioner's recommendation of #400 should be
increased to #800 and arrangements should be made by the Company
to provide the claimant with a suitable reference.

The Court so decides.
~
Signed on behalf of the Labour Court,


Tom McGrath
___31st___July,____1990. ___________________
D. H. / M. F. Deputy Chairman