Labour Court Database __________________________________________________________________________________ File Number: CD93482 Case Number: AD9393 Section / Act: S13(9) Parties: RABBITTE CATERING LTD - and - MS. ELIZABETH KENNY;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's recommendation No. BC174/93 appealed by both parties.
Recommendation:
The Court having considered the views of the parties as expressed
in their oral and written statements does not find that a case has
been made to warrant the amendment of the Rights Commissioner's
recommendation. The Court accordingly upholds the recommendation
of the Rights Commissioner and rejects the appeal of both parties.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD93482 APPEAL DECISION NO. AD9393
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: RABBITTE CATERING LTD
(REPRESENTED BY BEAUCHAMPS, SOLICITORS)
AND
MS. ELIZABETH KENNY
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
SUBJECT:
1. Appeal against Rights Commissioner's recommendation No.
BC174/93 appealed by both parties.
BACKGROUND:
2. 1. The Company is a major supplier to the catering
industry, employing approximately 12 workers. The worker
concerned commenced employment with the Company on 28th
November, 1992, and claims she was constructively dismissed
on 6th May, 1993. The Company states that the worker left
her employment voluntarily. The worker was employed
initially as a receptionist/tele-sales person and given a two
week trial period. She would be offered a permanent position
and have her salary reviewed if the trial period proved
satisfactory. The worker had replaced an employee who had
recently resigned.
2. The Company stated that it was unhappy with the worker's
performance but decided to extend the trial period until
after Christmas. The worker was moved to the accounts
department. The employee whom she had replaced returned to
the Company and was assigned to the worker's position. The
worker claimed that she sought training on the accounts
system but it was not provided.
3. A number of weeks later the worker was again moved
to a range of miscellaneous duties. The worker again claimed
that no training was provided and that her employer was
frequently abusive to her.
4. On 30th April, 1993 the worker sought two hours off to
attend a medical appointment (pregnancy related). The
Company advised her that she would have to take a half day
from 1.00 p.m.. On the 6th May, 1993 the worker was advised
that four hours pay was being deducted from her in lieu of
time off. The worker claimed that only two hours should have
been deducted as she had worked through her lunch break on
the day in question. The worker also claimed that her
employer was again abusive to her.
5. The worker contended that her employer's treatment left
her with no option but to leave the Company. She referred
the dispute to the Rights Commissioner Service and an
investigation took place on 28th July, 1993.
The Rights Commissioner's findings included the following
statements:
1. "I am satisfied that the worker had been subjected to an
unacceptable level of pressure amounting to harassment
from her employer".
2. "I have no doubt whatsoever but that the departure by
the worker from the Company was due to a constructive
dismissal".
The Rights Commissioner's recommendation issued as follows on
5th August, 1993.
"I do not recommend reinstatement. My recommendation is
that the Company should pay to the worker the sum of
#3750 and that this be acceptable by her in full and
final settlement of all claims on the employer in
relation to her employment and its termination".
(The worker and employer were named in the statement and
Recommendation)
The recommendation was appealed to the Labour Court by both
parties, under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeals on 12th October, 1993.
UNION'S ARGUMENTS
3. 1. The worker concerned was given a two week trial period
as a tele-sales person and at the end of this time was
offered a permanent position. She continued in the position
for four weeks and was then transferred to the accounts
department. The worker had previous experience with accounts
but sought training on the Company's accounts system.
Training was not provided, but the worker was subjected to
verbal abuse and harassment from her employer.
2. The worker concerned was again transferred to a range of
miscellaneous duties. No explanation for this move was
given. The worker again sought assistance but was refused.
At no time was the worker given any help from her employer.
Her salary was never reviewed as had been promised.
3. On 30th April, 1993, the worker, who was pregnant,
sought 2 hours off to attend a medical appointment. On 6th
April, 1993 her employer advised her that 4 hours pay in lieu
of time off was being deducted from her wages. Earlier on
that day the employer had been particularly offensive to the
worker when she sought assistance. The worker was left with
no option but to terminate her employment.
4. The Company intended to force the worker to resign as it
wished to have her replaced by the employee who had initially
resigned. This was achieved by the continuously abusive
attitude of the employer and the lack of assistance offered
to the worker. The Rights Commissioner's findings fully
support this contention. The worker's mental and physical
health have suffered as a result of her treatment by the
Company.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned was given a two week trial period
with the Company as a telephonist/sales person commencing on
20th November, 1992. The worker was advised by a supervisor
that the Company was not satisfied with her performance. She
was given a further trial period until after Christmas and
was advised that she would have to improve her performance.
2. The worker was moved to the Company's accounts
department. Her performance was again unsatisfactory. The
Company was also unhappy with the worker's time keeping and
with her excessive use of the fax and telephone. These
complaints were related to the worker on a number of
occasions. The worker's salary was not increased because of
her poor performance.
3. On 30th April, 1993, the worker asked for time off from
2 p.m. on that day. She was advised that she could take a
half day off from 1 p.m.. On 6th May, 1993, four hours pay
was deducted from the worker. The worker claimed that she
had worked until 2.15 p.m. and that only two hours pay should
have been deducted. She then terminated her employment with
the Company.
4. The return of a former employee had no bearing on the
worker being moved to the accounts department. The worker
was treated with respect and fairness at all time. The
Company had no knowledge of the worker's pregnancy.
DECISION:
The Court having considered the views of the parties as expressed
in their oral and written statements does not find that a case has
been made to warrant the amendment of the Rights Commissioner's
recommendation. The Court accordingly upholds the recommendation
of the Rights Commissioner and rejects the appeal of both parties.
The Court so decides.
~
Signed on behalf of the Labour Court
16th November, 1993 Tom McGrath
C.O'N./A.L. _______________
Deputy Chairman
Note
Enquiries concerning this Recommendation should by addressed to
Mr. Ciaran O'Neill, Court Secretary.