Labour Court Database __________________________________________________________________________________ File Number: CD91354 Case Number: AD9170 Section / Act: S13(9) Parties: THE CHILDREN'S HOSPITAL TEMPLE STREET - and - A WORKER;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Hospital against Rights Commissioner's recommendation No. ST/84/91 concerning alleged unfair dismissal.
Recommendation:
5. The Court is satisfied that some of the statements in the
Rights Commissioner's report are inaccurate. The Hospital also
produced additional information to the Court which was not made
available to the Rights Commissioner. Taking into account all
aspects of the submission and in particular the absence of Union
representation prior to the dismissal of the claimant, the Court
is of the view that the Rights Commissioner's recommendation is
not unreasonable in the circumstances and should be upheld.
The Court accordingly rejects the appeal and so decides.
Division: Ms Owens Mr Collins Mr Rorke
Text of Document__________________________________________________________________
CD91354 APPEAL DECISION NO. AD7091
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT 1969
PARTIES: THE CHILDREN'S HOSPITAL TEMPLE STREET
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
AND
A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
SUBJECT:
1. Appeal by the Hospital against Rights Commissioner's
recommendation No. ST/84/91 concerning alleged unfair dismissal.
BACKGROUND:
2. The worker concerned commenced employment as a catering
domestic on the 17th April, 1990. She worked twenty hours per
week and also agreed to work additional hours when required to
cover for annual and sick leave. The Hospital terminated her
employment on the 29th March, 1991 on the grounds that she failed
to reach an acceptable standard of performance/conduct at work.
The Union claimed that the dismissal was unfair and referred the
dispute to a Rights Commissioner for investigation and
recommendation. The Rights Commissioner investigated the dispute
on the 10th May, 1991. On the 14th June, 1991 the Rights
Commissioner issued his recommendation as follows:
"I recommend that the claimant is reinstated as a probationer
in a proper manner. The probationary period should last for
a further six months to the 17th October, 1991. She should
be offered representation whenever there is a need for a
caution during the period. This feature was singularly
lacking in her dismissal procedures".
The Hospital appealed the recommendation to the Labour Court on
the 20th June, 1991, under Section 13(9) of the Industrial
Relations Act, 1969. A Court hearing was held on the 1st August,
1991.
UNION'S ARGUMENTS:
3. 1. In March 1991 the worker received written notice from
Management that her employment was being terminated on the
29th March. The Union sought a meeting with Management to
discuss the issue. At this meeting Management stated that
the worker was being let go from her job because she was over
friendly with the staff and customers. In a job of this
nature it could be argued that friendliness was an important
part of the job.
2. No written warning was ever issued to the worker
regarding the performance of her duties during her term of
employment. She completed those duties in a competent and
efficient manner. Management did state that it had
interviewed the worker on two occasions regarding her work
performance. The worker was never offered the opportunity to
have Union representation at these meetings.
3. The normal industrial relations procedures were not
adhered to by Management in the case of the worker concerned
and a request by the Union that the worker should be given a
six month trial or a job in some other department was
rejected by Management.
4. Management at the meeting on the 26th March, 1991 stated
they were prepared to go to a third party (Rights
Commissioner) and accept the outcome, yet they now deny that
such an undertaking was given.
MANAGEMENT'S ARGUMENTS:
4. 1. The Hospital applies a standard probationary period of
12 months for all categories of employees. This is accepted
by the Union.
2. The probationary period provides the Hospital with an
opportunity to assess thoroughly an employee's suitability
for permanent employment. It is the only period during the
employment relationship when Management has a considerable
level of discretion in deciding on the suitability of any
individual. It is in effect an extension of the recruitment
process and the Hospital's commitment to a probationer is not
complete until the probation has been satisfactorily
completed. The Hospital counsels and warns individuals where
necessary that their employment will be terminated if they do
not achieve acceptable standards of performance or conduct at
work. This occurred in the case of this worker, who was
spoken to on a number of occasions.
3. A meeting took place with the Union on 26th March, 1991
to discuss the matter. However, the Hospital could see no
basis on which to alter its original decision that the worker
was not suitable for catering work.
4. In relation to the Rights Commissioner's Findings, the
Hospital would wish to comment, as follows:
(1) The worker was spoken to both formally and informally on
a number of occasions by Hospital Management.
It was made clear to her at a meeting on 29th November,
1990, that her employment would be terminated if she did
not improve.
(2) The fact that the Hospital applies a standard twelve
months probationary period was not disputed by the Union
at the hearing.
(3) The previous incumbent was not "dismissed, nine months
into her probationary period". Furthermore, there is
no substance to the allegation "that a deliberate policy
exists to avoid making permanent positions". The
reality is that three persons were appointed into
permanent positions in 1989 subject to completing a
satisfactory probationary period. The Hospital extended
the probationary period of all three and subsequently
confirmed two of these appointments on a permanent
basis. The third person did not achieve the necessary
improvement in performance and attitude and her
employment was terminated. The decision to terminate
was upheld on appeal by the Union to a Rights
Commissioner. The Hospital has replaced this worker and
her replacement is currently working in a permanent
capacity with the Hospital.
(4) "Over-friendliness" was not the sole ground upon which
the Hospital based its decision to terminate the
worker's employment.
DECISION:
5. The Court is satisfied that some of the statements in the
Rights Commissioner's report are inaccurate. The Hospital also
produced additional information to the Court which was not made
available to the Rights Commissioner. Taking into account all
aspects of the submission and in particular the absence of Union
representation prior to the dismissal of the claimant, the Court
is of the view that the Rights Commissioner's recommendation is
not unreasonable in the circumstances and should be upheld.
The Court accordingly rejects the appeal and so decides.
~
Signed on behalf of the Labour Court
15th August, 1991 Evelyn Owens
T.O'D. / M.O'C. _______________
Deputy Chairman