Labour Court Database __________________________________________________________________________________ File Number: CD92417 Case Number: AD92188 Section / Act: S13(9) Parties: LA FIESTA - and - A WORKER |
Appeal by the worker against Rights Commissioner's recommendation B.C. 190/92 concerning unfair dismissal.
Recommendation:
5. The Court has considered the submissions of the parties
together with the recommendation of the Rights Commissioner.
The Court does not find grounds to alter the findings of the
Rights Commissioner.
The Company should expeditiously arrange for the holidays and
notice issues to be resolved and for a P.45 to be made available
to the complainant.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD92417 APPEAL DECISION NO. AD18892
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: LA FIESTA
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
A WORKER
SUBJECT:
1. Appeal by the worker against Rights Commissioner's
recommendation B.C. 190/92 concerning unfair dismissal.
BACKGROUND:
2. The worker concerned commenced employment with the Restaurant
as a chef on the 17th February, 1991. He was dismissed on the
27th January, 1992. He claimed that his dismissal was unfair and
referred the issue to a Rights Commissioner for investigation and
recommendation. On the 7th July, 1992 the Rights Commissioner
issued his recommendation as follows:
"In the light of the above it is my conviction that taking all
factors into account both the worker's previous record with
the Company and the key role in which he had been placed as a
keyholder who would open the premises in the morning time it
was not unreasonable for the Company to terminate the
worker's employment on the date in question. I therefore
recommend that the worker's claim must fail".
(The worker was named in the Rights Commissioner's
recommendation).
On the 15th July, 1992 the worker appealed the recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on the 6th August, 1992.
WORKER'S ARGUMENTS:
3. 1. On the 20th January, 1992 the worker concerned was unable
to attend work due to an illness. He was unable to contact
the employer on that day as his mobility was severely
restricted and he did not have a telephone in his house. He
arranged to have the employer contacted on Tuesday 21st
January. A medical certificate was forwarded to the employer
on Wednesday 22nd January. The worker reported for work on
Monday 27th January. The employer telephoned him shortly
afterwards and arbitrarily dismissed him.
2. The worker was treated most unfairly by his employer. He
never received a written warning or formal reprimand regarding
late attendances. He accepts that remarks may have been made
in the course of casual conversation but the worker had no
reason to believe that his post was in jeopardy. The employee
believed that his job was secure and the employer had, for the
purpose of the worker obtaining a mortgage, verified that he
was in full-time employment. Surely if he was not satisfied
with the worker he would not have done so. The worker was
most co-operative with the employer and had a good working
relationship with him.
3. The worker was dismissed while out of work through illness
and on a medical certificate. He was treated in a most unjust
fashion and the Rights Commissioner was incorrect in his
recommendation. He is seeking appropriate redress for his
treatment. He did not receive his P.45, despite numerous
requests to the employer. He is also entitled to minimum
notice and holiday entitlements.
EMPLOYER'S ARGUMENTS:
4. 1. The restaurant is a small business with just three members
of staff. The worker had the key position of chef and had
responsibility for opening the premises at 8.00 a.m. to
prepare for breakfast trade and deal with lunch business. He
was warned on numerous occasions regarding his time-keeping
and attendance levels. At times, he would arrive up to three
hours late for work and business was lost. He was verbally
warned that if there was a further incident of
lateness/absence his employment would be terminated.
2. On the Monday in question the employer was contacted and
advised that the worker had not reported for work and the
restaurant was closed. He tried to contact the worker to no
avail. He had to employ a temporary chef to replace the
worker. The Company lost both its breakfast and lunch time
business due to the worker's non attendance. When the medical
certificate was received on Wednesday 22nd January no
indication was given as to the length of the absence. The
employer was not aware that the worker was returning to work
on 27th January as no contact had been made and the temporary
chef was rostered for work on that day. The employer sought
an explanation from the worker as to his behaviour. A
satisfactory explanation was not given and the employer
requested the worker to leave the premises. The employer had
no option but to dismiss the worker in view of his actions.
DECISION:
5. The Court has considered the submissions of the parties
together with the recommendation of the Rights Commissioner.
The Court does not find grounds to alter the findings of the
Rights Commissioner.
The Company should expeditiously arrange for the holidays and
notice issues to be resolved and for a P.45 to be made available
to the complainant.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
__________________
18th August, 1992. Deputy Chairman
T.O'D./J.C.