Labour Court Database __________________________________________________________________________________ File Number: CD90373 Case Number: AD9032 Section / Act: S13(9) Parties: TRANSMASTERS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against a Rights Commissioner's recommendation S.T. 379/89.
Recommendation:
5. Having considered the submissions made by the parties the
Court does not consider that any reason has been evinced which
would warrant any amendment to the Rights Commissioner's
Recommendation. The Court therefore decides that the
Recommendation should stand.
Division: Mr O'Connell Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD90373 APPEAL DECISIION NO. AD3290
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: TRANSMASTERS LIMITED
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against a Rights Commissioner's
recommendation S.T. 379/89.
BACKGROUND:
2. The Company operates a contract transport service. Holidays
for drivers are arranged on the basis that no two drivers take
holidays at the same time. In August, 1989 the worker concerned
in this dispute, was employed by the Company as a driver and
sought a week's holiday at short notice. The worker approached
his immediate superior, the depot foreman, who gave him permission
to take holidays. A company director subsequently withdrew the
permission and subsequently the depot foreman again gave
permission. The Union claims the worker therefore validly took
the requested one week's holidays. The Company claims that the
depot foreman does not have the authority to approve holidays and
that as the worker went on holidays against the expressed wishes
of the company director, who has such authority, the worker's
holidays were not authorised. When the worker reported back to
work on 21st August, 1989 he was dismissed by the company director
due to his absence from work. The Company also cited customer
complaints regarding the worker and a previous incident involving
damage to a company van as contributory grounds for his dismissal.
On the 24th August, 1989 the worker signed a termination of
employment agreement and received a payment of #209.99. The Union
sought compensation following the dismissal of the worker and as
no agreement could be reached at local level the matter was
referred to a Rights Commissioner who investigated the dispute on
26th January and 16th February, 1990 and issued the following
recommendation on 4th March, 1990:-
"RECOMMENDATION:
Following a number of side conferences the Rights
Commissioner made a recommendation that the Employer
would pay the Claimant the sum of #250 without prejudice
in full and final settlement of all his claims. The
Employer reluctantly accepted this recommendation and
agreed to give the claimant a written reference covering
his period of employment. The Union Representative
agreed to recommend acceptance to his member concerned."
The Union, on 26th June, 1990, appealed this recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 7th August, 1990.
UNION'S ARGUMENTS:
3. 1. The Union does not accept that there were valid grounds
for the dismissal of the worker. The main reasons given by
the Company for dismissal do not stand up to investigation.
2. In relation to the allegation that the worker took
unauthorised leave, the worker was in an impossible position
being advised to take leave by his immediate superior, being
denied leave by the company director, and then receiving
further advice from his immediate superior authorising his
leave.
3. In relation to alleged customer complaints, the worker had
no previous knowledge of such complaints and as the worker
received no previous written warnings from the Company and no
evidence was produced to substantiate the alleged complaints,
they do not stand as a valid reason for dismissal.
4. In relation to an incident concerning damage to a Company
van the worker did not receive a written warning in respect of
this matter. It is reasonable to assume that this incident
did not constitute a grevious issue at the time and is only
now being used in retrospect to lend credence to the dismissal
action by the Company.
5. It is clear that re-instatement of the worker would not be
satisfactory for both parties. The Rights Commissioner's
recommendation of #250 is inadequate and should be increased
to a reasonable figure.
COMPANY'S ARGUMENTS:
4. 1. Only directors of the Company have authority to approve or
reject requests for annual leave from drivers. The depot
foreman does not have such authority and did not give
permission to the worker to take annual leave. The worker was
dismissed on 21st August, 1989 after his return from
unauthorised leave which was taken against the express wishes
of the company director.
4. 2. Prior to his dismissal the worker had been warned
concerning complaints received from customers regarding his
delivery duties. The worker has also been warned regarding an
incident involving damage to a company van.
3. Before the worker took unauthorised leave he was advised
by the company director that if he took unauthorised leave it
would be effectively understood that he was not interested in
future employment with the Company.
DECISION:
5. Having considered the submissions made by the parties the
Court does not consider that any reason has been evinced which
would warrant any amendment to the Rights Commissioner's
Recommendation. The Court therefore decides that the
Recommendation should stand.
~
Signed on behalf of the Labour Court,
John O'Connell
___24th__August,___1990. ___________________
A. S. / M. F. Deputy Chairman