Labour Court Database __________________________________________________________________________________ File Number: CD92423 Case Number: AD92208 Section / Act: S13(9) Parties: MANGANS BRASSERIE - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's recommendation No. S.T. 157/92 concerning the alleged unfair dismissal of a worker.
Recommendation:
5. Having considered the submissions from the parties the Court
is satisfied that the appellant was unfairly treated. To that
extent the Court agrees with the Rights Commissioners
recommendation. However the Court is satisfied that the normal
Employer/Worker relationship has deteriorated to the extent that
it would be unlikely ever to be restored to a normal relationship.
The Court accordingly upholds the appeal in relation to
re-instatement. The Court is of the view that an award of
compensation is more realistic in the case and accordingly
determines that the appellant be paid a sum of #1,500 as
compensation.
The Court so decides.
Division: Ms Owens Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD92423 APPEAL DECISION NO. AD20892
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: MANGANS BRASSERIE
(REPRESENTED BY PLUNKETT TAAFFE SOLICITORS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's recommendation No. S.T.
157/92 concerning the alleged unfair dismissal of a worker.
BACKGROUND:
2. 1. The worker was employed as a security manager with the
Company. The present owners took over the Company on 14th
December, 1990. The worker had 2.50 years service with the
previous owner. His service had been terminated by the
previous owner prior to the business being taken over. His
reckonable service with the new owners is from 14th December,
1990.
2. On 5th March 1991, the worker suffered a serious accident
and was out of work for a considerable period of time. The
worker claimed that he was informed by the Managing Director
of the Company that it was not necessary for him to submit
medical certificates. This is denied by the Company.
3. In October 1991, the worker spoke to the Managing Director
regarding his return to work. The worker was informed that
his position had been filled on a permanent basis and he was
offered 3 nights work a week. This was unacceptable to the
worker. At a meeting on 14th October, 1991, the offer was
withdrawn.
4. The dispute was referred to the Labour Relations
Commission and a conciliation conference was held on 3rd
February 1992. At conciliation the Managing Director agreed
to consult with his principals in the U.K. No further contact
was made by the Company. A Rights Commissioner's
investigation took place on 11th May, 1992 at which the
Company did not attend. The recommendation as set out
below issued on 11th June, 1992.
*"RECOMMENDATION
I recommend that the claimant was unfairly dismissed
without just cause and that he was denied fair
procedures.
I therefore recommend that he is reinstated in his
employment forthwith".
5. The Company appealed the Rights Commissioner's
recommendation in accordance with Section 13(9) of the
Industrial Relations Act, 1969 and 36(2) of the Industrial
Relations Act, 1990. A Labour Court investigation took place
in Cork on 8th September, 1992 (the earliest date suitable to
both parties).
COMPANY'S ARGUMENTS:
3. 1. The Company employed the worker from 14th December, 1990
until his accident in March, 1991. The worker submitted one
or two medical certificates and only sporadic contact was made
by the worker for the remainder of his illness. The worker's
position with the Company was pivotal to the orderly running
of the night club and it was essential that he be immediately
replaced.
2. The Company was not informed by the worker that it was his
intention to return to work until he presented himself for
work without warning in October, 1991. The worker had only 10
weeks service at that stage whereas his replacement had over 6
months. The worker had frustrated his contract of employment.
3. At this stage the Company would have difficulties in
returning the worker to employment (details supplied). The
Company denies allegations by the Union that its books are not
in order and offered the Union the facility of examining them.
This offer was not taken up. At the time the worker presented
himself for work, the Company would have made hours available
to him but it was not in a position to reinstate him in his
former position.
UNION'S ARGUMENTS:
4. 1. This case has been with the Labour Relations Commission,
the Rights Commissioner's Service and now the Labour Court.
The Union has been ignored in all its attempts to negotiate
with the Company on behalf of the worker The worker suffered
severe injuries in an accident. He is now recovered and is
seeking his return to employment. No argument has been put
forward as to why the worker should not get his job back.
2. Numerous attempts have been made by the Union to resolve
the matter (details supplied). The Union contests any
employer sacking a person who through no fault of their own
suffered serious injuries. The trauma of the accident added
to the worry of retaining his employment is an unfair
imposition on any worker.
3. The Union believes that the only reason that the worker is
not back in employment is the cost of that employment (details
supplied). His employment is covered by others who may be
operating in the black economy. It is likely that if the
worker had accepted the offer of 3 nights per week and sought
dole for 3 days per week he would now have a job. The Company
say that the worker is no longer employed with them and yet he
has received no P.45 and no holiday payments.
DECISION:
5. Having considered the submissions from the parties the Court
is satisfied that the appellant was unfairly treated. To that
extent the Court agrees with the Rights Commissioners
recommendation. However the Court is satisfied that the normal
Employer/Worker relationship has deteriorated to the extent that
it would be unlikely ever to be restored to a normal relationship.
The Court accordingly upholds the appeal in relation to
re-instatement. The Court is of the view that an award of
compensation is more realistic in the case and accordingly
determines that the appellant be paid a sum of #1,500 as
compensation.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
___________________
8th October, 1992. Deputy Chairman.
J.F./J.C.