Labour Court Database __________________________________________________________________________________ File Number: CD91668 Case Number: AD92122 Section / Act: S13(9) Parties: ATLANTIC HOMECARE LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation number C.W. 297/91 concerning the alleged unfair dismissal of a worker.
Recommendation:
5. The Court having considered the submissions from the
parties is of the view that the Rights Commissioner's
recommendation is not unreasonable in the circumstances and
accordingly the Court upholds the recommendation and rejects the
appeal.
The Court so decides.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD91668 APPEAL DECISION AD12292
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: ATLANTIC HOMECARE LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation number C.W. 297/91 concerning the alleged unfair
dismissal of a worker.
BACKGROUND:
2. The worker was first employed by the Company in October,
1990 as a part-time assistant in it's Coolock Branch. In
February, 1991 the worker accepted a 'full-time' position with a
6 month probationary period. The worker had an unauthorised
absence from work from 28th April, 1991 to 1st May, 1991. A
formal written warning was issued by the Company on 2nd May,
1991 and the worker's probationary period was extended by 3
months. On 22nd July, 1991 the Company issued a written
letter to the worker regarding his work rate and his attitude to
management and supervisors. The worker refused to accept the
letter or sign for it's receipt. He was suspended on 22nd July,
1991. On the following day he was dismissed by the Company.
The Union claims that the worker was unfairly dismissed. The
Company rejects the claim. The dispute was referred to a Rights
Commissioner who investigated it on 19th November, 1991 and
issued the following recommendation:-
"I recommend that the Union and the worker accept that
the dismissal was fair".
(The worker was named in the recommendation).
The Union, on 10th December, 1991, appealed the recommendation
to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal on 8th January,
1992.
UNION'S ARGUMENTS:
3. 1. After the worker received a written warning on 2nd
May, 1991 his attendance record improved and there were no
further complaints from the Company. However on two
subsequent occasions the worker was unable to comply with a
request from the manager to do overtime at short notice.
The manager concerned took grave exception to this and
subsequently made life difficult for the worker. On 19th
July, 1991 the manager reprimanded the worker's supervisor
regarding a specific job which should have been carried
out. The manager then gave the worker a direct instruction
to carry out the specific job. The instruction was
subsequently countermanded by the worker's supervisor.
When the manager discovered that the worker had not carried
out his instructions he informed the worker that he would
receive a written warning on 22nd July, 1991.
3. 2. When the worker reported for work on 22nd July, 1991
he was requested by the manager to sign the written
warning. The worker had done nothing wrong and was under
the impression that if he signed it he would be accepting
the contents. The worker was told that if he refused to
sign he would be dismissed. On 23rd July, 1991 the worker
was unfairly dismissed for refusing to sign the letter.
Had the worker signed the written warning he would be still
an employee of the Company. His refusal to sign it was not
sufficient grounds to dismiss him.
COMPANY'S ARGUMENTS:
4. 1. The Company has dealt fairly with the worker and gave
him every opportunity to retain his employment. During the
probationary period the Company had occasion to warn the
worker orally and in writing that failure to carry out his
instructions and duties may result in the termination of
his employment. On 19th July, 1991 the worker was given a
direct instruction by the manager to carry out a specific
job. The worker failed to carry out the specific job. On
22nd July, 1991 the manager decided to give the worker one
last chance and issued a letter to him regarding the
Company's complaint about his work rate and attitude
towards management and supervisors. The worker refused to
sign for the written warning and was suspended. On 23rd
July, 1991 the Company decided to terminate the worker's
employment.
4. 2. It is normal Company practice for a worker to sign for
the receipt of a written memorandum from management. The
worker was aware that signing for receipt of the memorandum
does not mean acceptance of the contents. He was given
every opportunity to sign the memorandum.
4. 3. The worker was aware that at the end of his
probationary period his performance would be assessed and
if satisfactory he would be made permanent. The Company
was not satisfied and used it's prerogative to terminate
his employment.
DECISION:
5. The Court having considered the submissions from the
parties is of the view that the Rights Commissioner's
recommendation is not unreasonable in the circumstances and
accordingly the Court upholds the recommendation and rejects the
appeal.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
-----------------------
14th January, 1992
A.S./N.Ni.M. Deputy Chairman