Labour Court Database __________________________________________________________________________________ File Number: CD93345 Case Number: AD9358 Section / Act: S13(9) Parties: NV DINO INVESTMENTS - and - A WORKER |
Appeal against Rights Commissioner's Recommendation No. B.C. 44/93 by the employer concerning the alleged unfair dismissal of a worker.
Recommendation:
5. The Court has fully considered the oral and written statements
and the documentation made available by the parties. The Court
finds that the dispute referred to the Rights Commissioner and
advised to the employer in accordance with Section 13(3) of the
Industrial Relations Act, 1969 concerned the conditions of
employment of the claimant.
The dispute was referred to the Rights Commissioner prior to the
employee leaving her employment on 10th April, 1993. The Rights
Commissioner's hearing held on 26th April, 1993 referred to a
claim for constructive dismissal.
The Court finds that the question of constructive dismissal was
not referred to the Rights Commissioner or to the employer as
required under the provisions of the Industrial Relations Acts.
Accordingly given all the circumstances of this case the Court
finds that the Rights Commissioner's recommendation is void.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD93345 APPEAL DECISION NO. AD5893
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: NV DINO INVESTMENTS
TRADING AS LA COQUILLAGE
and
A WORKER
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. B.C.
44/93 by the employer concerning the alleged unfair dismissal of a
worker.
BACKGROUND:
2. 1. The Company operates as a restaurant and the worker was
employed as a chef from 9th June, 1992 to 10th April, 1993.
Prior to leaving her employment she had submitted a request
for a Rights Commissioner's investigation regarding her
conditions of employment on 23rd January and 7th March, 1993.
2. The worker resigned on 10th April, 1993 and the Rights
Commissioner's investigation took place on 26th April, 1993.
The Company did not attend the investigation. The Rights
Commissioner's Recommendation as follows was issued on 7th
May, 1993:
"In the light of the above I must uphold the claim by the
claimant. I do not recommend reinstatement.
My Recommendation is that the employer, trading as Le
Coquillage, should pay to the claimant the sum of #1,000
as that this be accepted by her in full and final
settlement of all claims on the employer in relation to
her employment and its termination. I further recommend
that the employer furnish the claimant with her P45 and
P60 forthwith".
The employer and the claimant were named in the
Recommendation.
3. The Rights Commissioner's Recommendation was appealed to
the Labour Court by the Company by letter dated 28th May, 1993
and by the worker by letter dated 4th June, 1993. The Labour
Court heard the appeal on 24th June, 1993.
WORKER'S ARGUMENTS:
3. 1. Since the worker began work, she experienced difficulties
in her relationship with her employer. During her period of
employment the worker was expected to clean the kitchen in the
regular absence of a kitchen porter. She worked for periods
on a 3 day week and was asked to work on the counter rather
than as a chef. The employer also requested the worker to
work late nights when it was inconvenient for her to do so.
2. In March, 1993, another chef was employed without the
knowledge of the worker. The worker resigned in April as she
felt that she was being asked to do too much work in a tense
environment where her conditions of employment changed
regularly. The worker is seeking that the Rights
Commissioner's Recommendation be implemented.
COMPANY'S ARGUMENTS:
4. 1. The Company had a number of difficulties with the worker
and the standard of her work which it has not been able to
resolve. The employer never harassed the worker. In view of
customer and other complaints (details supplied), the worker
was offered the opportunity to train at another restaurant,
which she declined. Any complaints were taken up with the
worker straight away but little improvement was forthcoming.
There was a kitchen porter employed for every week of the
worker's employment.
2. The employer was not made aware that the worker felt she
was being mistreated. The worker resigned and was not let go.
She said that she was going to work in Jersey. The Rights
Commissioner's service was contacted. The employer assumed
that as the worker had resigned, there was nothing to discuss
and no reason for an investigation to take place. The worker
left of her own free will and for this reason, the Company did
not attend a Rights Commissioner's investigation.
DECISION:
5. The Court has fully considered the oral and written statements
and the documentation made available by the parties. The Court
finds that the dispute referred to the Rights Commissioner and
advised to the employer in accordance with Section 13(3) of the
Industrial Relations Act, 1969 concerned the conditions of
employment of the claimant.
The dispute was referred to the Rights Commissioner prior to the
employee leaving her employment on 10th April, 1993. The Rights
Commissioner's hearing held on 26th April, 1993 referred to a
claim for constructive dismissal.
The Court finds that the question of constructive dismissal was
not referred to the Rights Commissioner or to the employer as
required under the provisions of the Industrial Relations Acts.
Accordingly given all the circumstances of this case the Court
finds that the Rights Commissioner's recommendation is void.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
___________________
22nd July, 1993. Deputy Chairman.
J.F./J.C.