AD92138

Labour Court Database __________________________________________________________________________________ File Number: CD9242 Case Number: AD92138 Section / Act: S13(9) Parties: ATLANTIC HOMECARE - and - A WORKER

Subject:
Appeal by the worker against Rights Commissioner's Recommendation No. B.C. 379/91 concerning alleged constructive dismissal.

Recommendation:
5. The Court has considered the submissions made by the parties
and takes the view that the Rights Commissioner's recommendation
was correct. The court therefore decides that it should stand.

Division: Mr O'Connell Mr Brennan Mr Rorke

Text of Document__________________________________________________________________

CD9242 APPEAL DECISION NO. AD13892

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES: ATLANTIC HOMECARE

and

A WORKER

SUBJECT:
1. Appeal by the worker against Rights Commissioner's
Recommendation No. B.C. 379/91 concerning alleged constructive
dismissal.

BACKGROUND:
2. The worker was employed as a sales assistant with the Company.
Staff avail of Company goods at discount prices through a Staff
Purhcase Scheme.

On Friday 12th July, 1991 the worker, accompanied by a friend,
purchased a trolley load of goods which, having been authorised by
the manageress, was allowed the special staff discount. Later
that day while checking the till roll it came to the manageress's
attention that all of the items on the trolley were not paid for.
On the following Monday afternoon the worker was called to the
office where he was interviewed about the goods by the manageress
and the operations director. The worker agreed that two packages
were not paid for and admitted that the purchase had not been for
himself. The Company took a very serious view of the situation
and gave the worker the option of having the Gardai called or of
resigning. The worker chose the latter and signed a letter of
resignation on 15th July, 1991.

The worker claimed that he was constructively dismissed and
referred the issue to a Rights Commissioner for investigation and
recommendation. A Rights Commissioner's hearing took place on
21st November, 1991 and the following recommendation issued on
10th January, 1992.

"Recommendation

In the context of the above it is my belief that the worker
voluntarily resigned his position with the Company and
therefore I recommend that his claim must fail".

The worker was named in the recommendation.



The Rights Commissioner's recommendation was appealed to the
Labour Court by the worker in accordance with Section 36(2) of
Industrial Relations Act, 1990. A Labour Court investigation took
place on 10th February, 1992.


WORKER'S ARGUMENTS:
3. 1. The failure to pay for the 2 packages at the time of
purchase was a genuine mistake which would have been rectified
immediately if it had been brought to the worker's attention
on the particular afternoon. The discrepancy had been noticed
by the manageress later that day but despite the fact that the
worker worked until 6 p.m. that Friday it was not brought to
his attention until the following Monday afternoon. Monday
was the first time the worker became aware that there was a
discrepancy.


2. When faced with a choice of having the Gardai called or of
resigning the worker panicked and signed the letter of
resignation under duress. It was not his intention at any
time to leave the Company.


3. The worker has never been accused of dishonesty. He has
now been branded a thief and wants to have his name cleared.


COMPANY'S ARGUMENTS:
4. 1. The worker was not dismissed. He voluntarily resigned
from his employment.


2. The actions of the worker were entirely wrong and resulted
in a breach of trust. Firstly the worker had allowed goods
which were unpaid for to leave the store. Secondly by
purchasing the goods for a friend he abused the Staff Purchase
Scheme.


3. The Company at no time accused the worker of stealing. It
contemplated calling the Gardai to investigate but gave the
worker the option of resigning instead. He chose this option.


4. Both prior to and during the meeting of Monday 15th
February the worker was given the chance to have a
representative with him. The worker declined the offer.


DECISION:
5. The Court has considered the submissions made by the parties
and takes the view that the Rights Commissioner's recommendation
was correct. The court therefore decides that it should stand.
~

Signed on behalf of the Labour Court


John O'Connell
_______________________
9th March, 1992 Deputy Chairman.
A.NiS./J.C.



Note


Enquiries concerning this Recommendation should be addressed to
Ms. Aoibheann Ni Shuilleabhain, Court Secretary.