Labour Court Database __________________________________________________________________________________ File Number: CD91121 Case Number: AD9154 Section / Act: S13(9) Parties: P. & A. MECHANICAL SERVICES LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation No. C.W.275/90 concerning the alleged unfair dismissal of a worker.
Recommendation:
5. Having considered the submissions of the parties the Court
considers that the Rights Commissioner's recommendation should be
amended by increasing the amount to #1,000.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD91121 APPEAL DECISION NO. AD5491
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT 1969
PARTIES: P. & A. MECHANICAL SERVICES LIMITED
(Represented by the Federation of Irish Employers)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation No. C.W.275/90 concerning the alleged unfair
dismissal of a worker.
BACKGROUND:
2. The worker concerned commenced employment as a first year
apprentice plumber with P. & A. Mechanical Services, Cavan on 18th
September, 1989 and was subsequently employed from 26th July, 1990
by P. & A. Mechanical Services, Enniskillen. In July, 1990 the
Company secured a work contract in the Isle of Man. The worker
was assigned to the Isle of Man on 24th July, 1990 as part of the
contract crew. He returned home to Ireland on Saturday the 28th
July, 1990 to participate in a sporting event. He returned to the
Isle of Man for work on the following Monday. On Sunday the 2nd
September, 1990 the worker again returned home to participate in a
sporting event. The following day his employment with the Company
was terminated. The Company claims that the worker accepted work
on the Isle of Man project on condition that he did not return
home until Halloween. The worker returned home in July, 1990
without permission and had been warned that if he returned home
again he would be dismissed. As the worker had returned home
without permission again on 2nd September, 1990 he was in breach
of his contract and was therefore dismissed by the Company. The
Union claims that the worker was unfairly dismissed. There was no
agreement on conditions to apply while engaged on the Isle of Man
project and the worker had received permission to return home on
both occasions. The worker should be compensated by the sum of
#5,000 for the upset to his career prospects. No agreement on the
issue was reached at local level discussions and the dispute was
referred to a Rights Commissioner who investigated it on 23rd
January, 1991. He issued the following recommendation on 28th
January, 1991:-
"RECOMMENDATION
I recommend that the Company offers and the worker accepts
that the sum of #750 in full and final settlement of any
dispute relating to the termination of his employment.
(The worker was named in the recommendation).
The Union, on 11th February, 1991 appealed the recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on 21st June, 1991.
UNION'S ARGUMENTS:
3. 1. On Friday the 20th July, 1990 the worker was informed
that he could either agree to work on the Isle of Man project
or be laid off. There was no agreement drawn up on any
aspect of the conditions which were to apply while working in
the Isle of Man. Before leaving for the Isle of Man on 24th
July, 1990 the worker received permission to return home
on the following Sunday for the day. On 1st September, 1990
the worker received permission to return home on 2nd
September, 1990 provided he returned for work on the Monday
morning. The worker proceeded to the airport and while
waiting to depart he received a message that if he returned
home he would be dismissed. The worker returned home to
Ireland and his employment with the Company was terminated
on the following day.
2. The worker did not accept any condition that he could
not return home from the Isle of Man until Halloween. As an
apprentice at the time his standard working week was 40
hours. There was no justification for denying him
participation in his chosen sport in his own time. It did
not effect his attendance for work and there were no
complaints regarding his time-keeping or work performance.
3. The unfair dismissal of the worker upset his career
prospects. He subsequently had to spend 28 weeks on a
welding course in an effort to find a job with a local
engineering firm. He has recently secured employment with a
plumbing firm and is now again pursuing his chosen career.
However the Rights Commissioner erred in calculating the
compensation payable to the worker and the Union's claim for
a lump sum payment of #5,000 compensation is justified.
COMPANY'S ARGUMENTS:
4. 1. In July 1990 the worker concerned volunteered to work on
the Isle of Man project. The Company agreed that he could
work on the contract provided he accepted the condition that
he did not return home from the site until Halloween. The
reason for this condition is that the oversea's contract must
be completed within the agreed time period, therefore a lot
of overtime and weekend working was required for the duration
of the contract. All of the contract crew, including the
worker, accepted this condition.
2. After the worker returned home, without permission, on
28th July, 1990 he was specifically warned that if he
returned home again he would be dismissed. The worker's
subsequent requests for permission to return home are
evidence that the worker was aware that he needed such
permission. When the worker returned home without permission
on 2nd September, 1990 he was aware that he was in breach of
his contract of employment. The worker was subsequently
dismissed.
3. Since the worker was dismissed he has secured
alternative employment in the plumbing business. He has been
registered as an apprentice plumber and credit has been given
for his time of employment with the Company. The worker's
dismissal has not interfered with his career prospects. The
Union's claim is totally unfounded and the compensation
recommended by the Rights Commissioner is reasonable in the
circumstances.
DECISION:
5. Having considered the submissions of the parties the Court
considers that the Rights Commissioner's recommendation should be
amended by increasing the amount to #1,000.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
____________________
18th July, 1991
A.S. / M.O'C. Deputy Chairman