Labour Court Database __________________________________________________________________________________ File Number: CD92420 Case Number: AD92194 Section / Act: S13(9) Parties: CAMPBELL CATERING LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal, by the Union, against Rights Commissioner's Recommendation No. DC32/92 concerning dismissal during a probationary period.
Recommendation:
4. Having considered the written and oral submissions of the
parties, the Court is of the view that the Company should accept
the Union assurance that the processing of this case is not a
challenge to the condition of employment whereby management has
the right during a period of probation to terminate the employment
of any employee. The Court has accepted the Union assurance and
has reviewed the case in that context.
Having regard to the Company's rights under the conditions of
employment, the Court accepts that the Company was entitled to
dismiss the worker. However, taking account of the nature and
degree of the offence and the fact that the worker had not been
advised of any other dissatisfaction with her work performance,
the Court considers that the Company should re-engage the worker
at the earliest possible opportunity, starting her employment
record afresh and with a new probationary period of six months in
accordance with the Conditions of Employment.
The Court so decides.
Division: Mr Heffernan Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD92420 APPEAL DECISION NO. AD19492
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT 1969
PARTIES: CAMPBELL CATERING LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal, by the Union, against Rights Commissioner's
Recommendation No. DC32/92 concerning dismissal during a
probationary period.
BACKGROUND:
2. The worker was employed by the Company on 1st February, 1992
as a general assistant. The worker was subject, as is the
practice within the Company, to a six month probationary period.
On Tuesday 7th April, 1992, during her afternoon tea-break the
worker left the Company premises without permission. The worker
was subsequently approached by her Supervisor who informed her
that it had been reported that she had been in town during working
hours. The worker admitted that she had and explained that she
had driven in to do a personal errand during her tea-break. She
also admitted that she had not reported off duty for that period
of time nor had she notified any supervisor of her absence. The
Supervisor stated that the matter would have to be referred to the
Unit Manager who at the time was on annual leave. On Monday 13th
the Unit Manager met with the worker and it was accepted by both
parties that the worker was in breach of her conditions of
employment. The Company considered this breach to be serious
misconduct and felt that, as it had arisen during the probationary
period, it had no alternative but to terminate the workers
employment. On Wednesday 15th April the Union met with the
Company and requested that it adopt a more lenient approach to the
worker by replacing the dismissal with a warning or a period of
suspension. The Company rejected the suggestion.
The Union referred the issue to a Rights Commissioner for
investigation and recommendation. A Rights Commissioner's
investigation took place on 28th May, 1992 and the following
recommendation issued on 1st July, 1992:-
"The Union do not dispute the facts of the case and were
emphatic that they were not seeking to challenge the
Company's discretion or right to terminate the employment of
a person, during their probationary period, but were
effectively pleading for lenient re-consideration for the
re-instatement of the member.
The Company were not receptive to re-instatement for the
reasons stated and in that the claimant quite blatantly
breached her conditions of employment less than 3 months
after commencement of that employment.
I cannot find in her favour and therefore recommend that the
termination of her employment during her probation, having
regard to all the circumstances, was not unfair.
However, as it appears that there was certain degree of
naivety on the part of the claimant towards the serious
implications of her behaviour which gave rise to her
dismissal, I recommend that the employer pay her an
ex-gratia lump sum of #150.00, which she should accept in
full and final settlement of her claim."
The Rights Commissioners recommendation was appealed to the Labour
Court by the Union in accordance with Section 36(2) of the
Industrial Relations Act, 1990. A Labour Court investigation took
place in Galway on 12th August, 1992.
UNION'S ARGUMENTS:
3. 1. The Union is not questioning or disputing the Company's
right to manage but feels that during a probationary period
each case should be dealt with on a individual basis.
2. The worker concerned was in the wrong and when
approached by the Company admitted her misdemeanour. The
worker absented herself during her break-time. This did not
disrupt the work schedule as it was not noticed on the day in
question. It was never the intention of the worker to defraud
the Company.
3. By bringing this case the Union is not attempting to
create a precedent whereby the probationary clause is
challenged whenever a breach occurs.
COMPANY'S ARGUMENTS:
4. 1. The worker was clearly in breach of her conditions of
employment by leaving Company premises. There is no
indication that, had her absence not been reported, she would
ever have told management of her actions. The worker is paid
during her break-times and would have accepted payment for the
period in which she was carrying out her own personal
business. This the Company considers to be a serious breach
of trust. Due to the nature of the job, staff are not always
subject to direct supervision and it is, therefore, imperative
that they can be trusted to carry out their duties properly
2. The probationary period is a period in which the Company
has the "sole discretion" to decide on a worker's suitability
for a position. The Company accepts that any decision it
makes during a probationary period can be open to
representations by a worker or his/her representative but that
the final decision rests with the Company. In this particular
case the Company decided on the evidence of her conduct that
the worker was unsuitable and exercised its right under the
probationary clause to dismiss her, a right that cannot be
questioned.
DECISION:
4. Having considered the written and oral submissions of the
parties, the Court is of the view that the Company should accept
the Union assurance that the processing of this case is not a
challenge to the condition of employment whereby management has
the right during a period of probation to terminate the employment
of any employee. The Court has accepted the Union assurance and
has reviewed the case in that context.
Having regard to the Company's rights under the conditions of
employment, the Court accepts that the Company was entitled to
dismiss the worker. However, taking account of the nature and
degree of the offence and the fact that the worker had not been
advised of any other dissatisfaction with her work performance,
the Court considers that the Company should re-engage the worker
at the earliest possible opportunity, starting her employment
record afresh and with a new probationary period of six months in
accordance with the Conditions of Employment.
The Court so decides.
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Signed on behalf of the Labour Court
Kevin Heffernan
31st August, 1992 ----------------
A. O'S/U.S. Chairman