Labour Court Database __________________________________________________________________________________ File Number: CD89734 Case Number: AD902 Section / Act: S13(9) Parties: TURVEY DEVELOPMENTS LIMITED - and - A WORKER |
Appeal by the worker against Rights Commissioner's Recommendation C.W. 138/89 concerning a claim for alleged unfair dismissal.
Recommendation:
7. Having regard to all the circumstances of this case, the Court
is of the view that the sum recommended by the Rights Commissioner
in full and final settlement of this dispute should be increased
to #750.
The Court so decides.
Division: CHAIRMAN Mr Brennan Mr O'Murchu
Text of Document__________________________________________________________________
CD89734 APPEAL DECISION NO. AD290
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: TURVEY DEVELOPMENTS LIMITED
T/A YOUNG & SON AUCTIONEERS
and
A WORKER
SUBJECT:
1. Appeal by the worker against Rights Commissioner's
Recommendation C.W. 138/89 concerning a claim for alleged unfair
dismissal.
BACKGROUND:
2. The worker concerned answered a newspaper advertisement dated
the 11th January, 1989, for the position of receptionist/secretary
with the Company. She attended an interview on the 19th January
at which she claims her duties were explained to her as being the
operation of a six line telephone system along with some
occasional typing. The Company disagrees and claims she was told
her duties would include secretarial work, receptionist duties,
assisting negotiators, dealing with the personal business of her
employer relating to rent collection etc. and assisting with all
other various situations which might arise on a day to day basis.
Following a second interview she was offered and accepted the
position at an agreed salary of #10,000 per annum. She commenced
her employment on the 25th January, 1989. The worker claims she
had to serve a three month probationary period but this is
disputed by the Company which claims it was to be for six months.
She further alleges that she received no letter of appointment,
written contract of employment and had to wait until March for her
P45 form to be submitted to the tax office. The Company claim it
dealt with her P45 as soon as she submitted it to its book-keeper.
3. Within a few weeks of employment the worker was taken off
receptionist duties and put on secretarial work plus looking after
her employer's personal affairs. She claims that when she
questioned his reasons for doing this she failed to get any
satisfactory answers. On the 24th May, the Employer informed her
of his decision to make her redundant giving as a reason the fact
that sales of apartments had fallen dramatically and there was
consequently little or no work for her to do. She was offered a
choice of either two weeks' notice or her holiday pay and a week's
pay in lieu of notice. She opted for the latter.
4. The worker claims that she was unfairly dismissed, having been
given to understand that she had a permanent position. She also
alleges that a genuine redundancy situation did not exist and
believes that another person was engaged to fill her position.
She subsequently referred a claim for unfair dismissal to a Rights
Commissioner for investigation and recommendation. The Rights
Commissioner having investigated the dispute on the 12th
September, 1989, issued the following findings and recommendation
on the 20th September:
"the lack of any documentation on the worker's appointment
makes it difficult for me to assess the original terms of the
employment. I am not completely satisfied that a genuine
redundancy situation existed but it is possible that the
Employer was within his rights if the probationary period was
as he stated. Whatever legislation is involved,it is an
obligation for employers to carry out dismissals in a fair
and reasonable manner, giving true reasons and opportunity
for an employee to defend themselves.
I recommend that the Company offers and the worker accepts
the sum of #500 in full and final settlement of her dispute
with the Company."
The worker appealed this recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969, on the
grounds that the sum awarded was inadequate. A Court hearing was
held on the 13th November, 1989. At this hearing the worker
alleged that there were irregularities in her pay and that the
wage slips she had received subsequent to her dismissal showed
that the Employer had failed to honour his commitment regarding
her salary of #10,000 per annum. The hearing was adjourned to
allow the Employer to investigate these claims and a re-convened
hearing took place on the 11th December, 1989.
WORKER'S ARGUMENTS:
5. 1. Around the time her P45 was eventually submitted to the
tax office, her employer began to pay her weekly wage by way
of a cheque for #90.03 and #40 cash. Although not happy about
this arrangement she felt there was little she could do about
it.
2. No satisfactory replies were given to the worker's
questions as to the reasons for her removal from receptionist
duties. She was given the task of keeping her employer's rent
collection from certain properties up to date. In addition,
she was given the responsibility of assisting the Company's
two negotiators to sell apartments. This involved taking
phone messages in their absence, assisting them with telephone
enquiries, updating lists of apartments for sale, and typing
all correspondence relating to the sale of either houses or
apartments. She was also occasionally instructed to take
measurements of local properties, accompany clients to view
properties and be present at show house viewings at week-ends.
Furthermore, the worker was at times asked to carry out duties
inappropriate to her position in the Company (details supplied
to the Court).
3. On being made redundant she was not offered the choice of
returning to functioning mainly as a receptionist with some
occasional typing as agreed in her interview. Furthermore,
the worker believes that another person has been recruited to
fill her former position.
4. The sum of #500 awarded by the Rights Commissioner is
inadequate, especially in view of previous settlements made
following recommendations and determinations made by the
Labour Court.
COMPANY'S ARGUMENTS:
6. 1. At the initial interview it was explained to the worker
that it was impossible to give a precise job description and
that over a period of a few weeks she would come to understand
the nature of the business. However, she was advised that her
duties would include reception and secretarial work, assisting
negotiators and looking after personal business of her
employer.
2. At the time of her appointment the Company had just
commenced marketing 77 new houses in Sandymount, 91 in Kimmage
and 20 in Milltown. The volume of enquiries and the level of
activity was excellent and it was envisaged that this would
continue. However, it was short-lived. The Milltown project
was cancelled and the bulk of Sandymount was sold in
approximately six weeks. Furthermore, sales in apartments,
the bulk of the appellant's work, dwindled to a standstill.
Eventually with no work and diminishing income the Company was
left with no alternative but to lay her off. She knew of this
possibility herself for some time. Since that time both of
the other secretarial staff have also gone. The Company's
shop in Ranelagh and the office in Rathmines do not employ
secretarial staff (details supplied to the Court).
3. Despite the so called good market, the Company's turnover
is less than it was at any time over the last few years, due
in large to the very heavy competition and the emergence of so
many new estate agencies.
4. It was not financially possible to protect the worker's
employment. She was made redundant due to circumstances
outside the Company's control. She was given the opportunity
to work her two weeks' notice or payment in lieu - she opted
for the latter. It was the intention to expand the business
not contract it - if the market had stabilised or improved in
any minor way redundancy would not have become an issue.
6. The length of the worker's employment was considerably
shorter than the six months probationary period.
DECISION:
7. Having regard to all the circumstances of this case, the Court
is of the view that the sum recommended by the Rights Commissioner
in full and final settlement of this dispute should be increased
to #750.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
______________________
10th January, 1990. Chairman.
D.H./J.C.