Labour Court Database __________________________________________________________________________________ File Number: CD92591 Case Number: AD92228 Section / Act: S13(9) Parties: POUNDSWORTH LIMITED - and - A WORKER |
Appeal against Rights Commissioner's recommendation No. B.C. 204/92 concerning the alleged unfair dismissal of a worker.
Recommendation:
5. Having considered the submissions made by the parties at the
hearing, the Court is concerned by the direct conflict of evidence
relating to the interview prior to the cessation of the worker's
employment. In the circumstances it believes the most likely
explanation arises from a misunderstanding of the Employer's
intentions which could occur easily enough in such a stressful
situation.
The Court therefore accepts that the Company did not intend to
dismiss the worker concerned but could be considered to be at
fault in not later attempting to clarify the situation for him.
The Court therefore, whilst not upholding the Rights
Commissioner's recommendation that the worker was unfairly
dismissed does consider that in the circumstances the amount he
was awarded should be amended to the sum of #600. The Court so
decides.
Division: Mr O'Connell Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD92591 APPEAL DECISION NO. AD22892
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: POUNDSWORTH LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
A WORKER
SUBJECT:
1. Appeal against Rights Commissioner's recommendation No. B.C.
204/92 concerning the alleged unfair dismissal of a worker.
BACKGROUND:
2. 1. The worker was employed by the Company on 9th August,
1991. The worker's employment was terminated on 9th April,
1992.
2. The worker referred a claim for alleged unfair dismissal
to a Rights Commissioner for investigation. The Rights
Commissioner's investigation took place on 12th August, 1992.
The following findings and recommendation issued on 10th
September, 1992:
"FINDINGS
Having investigated the matter and having given full and
careful consideration to the points made by both parties
I have come to the following conclusions.
1. I am satisfied that on occasion the worker did turn
up late for work.
2. I do not believe that he can be held to have
behaved unsatisfactorily in regard to two of the
three Saturdays in dispute.
3. Concerning the other Saturday a conflict of evidence
has emerged between the parties which I find
difficult to be able to resolve.
4. Reference was made to the worker's failure to secure
a satisfactory number of "catches" among actual and
potential thieves in the store. This is an issue
which involves a basic degree of subjective
analysis.
RECOMMENDATION:
In the light of the above I must deem that the worker
was unfairly dismissed from his employment. I do not
recommend reinstatement.
My recommendation is that Poundsworth should pay to the
worker the sum of #900 and that this be accepted by him
in full and final settlement of all claims on the
Company in relation to his employment and its
termination".
(The worker was named in the Recommendation).
3. The Rights Commissioner's recommendation was appealed to
the Labour Court by the Company, by letter dated 24th
September, 1992 under Section 13(9) of the Industrial
Relations Act, 1969. A Labour Court investigation took place
on 3rd November, 1992 (the earliest date suitable to both
parties).
COMPANY'S ARGUMENTS:
3. 1. The Company is appealing the Rights Commissioner's
recommendation as it did not address the facts of the case as
presented to him by the Company. The worker resigned his
position and was not dismissed (details supplied). The
Company had discussed areas of concern with the worker. The
Company did not dismiss or signal its intention to dismiss the
worker at any stage.
2. It is appropriate that the Company address its concerns to
the worker about his specific absences and late attendances.
These concerns are well founded and have been upheld by the
Rights Commissioner. The Commissioner stated in relation to
the worker's performance that it involved a degree of
subjective analysis. The Company contends that it had a
legitimate concern about the low number of shoplifters caught
over the worker's period of employment. It is consistent with
natural justice that the worker should be informed of the
Company's concerns and given an opportunity to make
improvements. The worker's response was to voluntarily
resign.
WORKER'S ARGUMENTS:
4. 1. The Company decided to dismiss the worker, claiming a poor
sick absence record, persistent lateness and lack of "arrests"
among actual and potential thieves in the store. The worker
receive no written or verbal warnings during his employment
with the Company. The sick absences were generally certified
and explained to the satisfaction of the Rights Commissioner.
2. The worker completed his duties conscientiously while
employed by the Company. The Company never made him aware of
any dissatisfaction with either his attendance or work records
until he was dismissed without warning on 9th April, 1992.
The worker is surprised that the Company state that he was not
dismissed but warned about his attendance. This is not the
case and it is unusual that the Company are making such a
claim, not having done so before the Rights Commissioner. The
worker is willing to accept the Rights Commissioner's
recommendation.
DECISION:
5. Having considered the submissions made by the parties at the
hearing, the Court is concerned by the direct conflict of evidence
relating to the interview prior to the cessation of the worker's
employment. In the circumstances it believes the most likely
explanation arises from a misunderstanding of the Employer's
intentions which could occur easily enough in such a stressful
situation.
The Court therefore accepts that the Company did not intend to
dismiss the worker concerned but could be considered to be at
fault in not later attempting to clarify the situation for him.
The Court therefore, whilst not upholding the Rights
Commissioner's recommendation that the worker was unfairly
dismissed does consider that in the circumstances the amount he
was awarded should be amended to the sum of #600. The Court so
decides.
~
Signed on behalf of the Labour Court
John O'Connell
_______________________
8th December, 1992. Deputy Chairman.
J.F./J.C.