AD9558

Labour Court Database __________________________________________________________________________________ File Number: CD95358 Case Number: AD9558 Section / Act: S13(9) Parties: RIVERLAND LIMITED (TRADING AS @THE LONG STONE') (T/A THE LONG STONE MICHAEL E CUSACK) - and - A WORKER

Subject:
Appeal by the worker of Rights Commissioner's Recommendation No. CW102/95.

Recommendation:
The Court, having considered all aspects of this case, finds no
reason to amend the Right Commissioner's Recommendation.

The Court, accordingly, rejects the appeal and upholds the Rights
Commissioner's Recommendation.

The Court so decides.

Division: Mr Flood Mr Keogh Ms Ni Mhurchu

Text of Document__________________________________________________________________

CD95358 APPEAL DECISION NO. AD5895

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

PARTIES:
RIVERLAND LIMITED (TRADING AS `THE LONG STONE')

AND

A WORKER
SUBJECT:

1. Appeal by the worker of Rights Commissioner's Recommendation
No. CW102/95.



BACKGROUND:

2. The dispute arose due to the Company's requirement that the
worker work St. Patrick's Day, Friday 17th March, 1995. From
outside enquiries, the worker understood that many other
employers paid double time in such circumstances. When he
commenced his shift at 3 p.m., he enquired about the rate of
pay. He was advised that a flat rate would apply. He gave
one week's notice, received his week's pay (including Friday
the 17th), left the premises. When he reported for work the
following day, at 10.30 a.m., he was told that he was
suspended without pay for one week, and his P45 was sent to
him by post. The worker claims that he was unfairly
dismissed. The Company denies that the worker was unfairly
treated, stating that a day off in lieu is given to workers
rostered to work a bank holiday. The Company also claims
that the worker's suspension was justified as he had
abandoned his job at a very busy time. The dispute was the
subject of a Rights Commissioner's investigation on the 31st
of May, 1995.

The Rights Commissioner found that the failure of the
employer to comply with the worker's basic right to written
knowledge of his conditions of employment (especially public
holiday arrangements) might be considered grounds for
constructive dismissal. The Rights Commissioner further
found that he was dismissed without any regard to prior
procedure or natural justice and that the fact that he had
left his job (whether provoked or not) was no defence to a
procedure which is manifestly unfair.




The Rights Commissioner did not consider that the worker was
overpaid on March the 17th as he was entitled to payment for
the public holiday. He believed that the dispute of the
worker had merit as his apparent lack of regard for his
employer occurred after his employer's disregard for him.

The Rights Commissioner recommended that the Company offer
and that the worker accept #300 in settlement of the dispute.
(The worker was named in the Rights Commissioner's
Recommendation)

The worker appealed the Recommendation on the 9th of June,
1995. The Court heard the appeal on the 21st of July, 1995



WORKER'S ARGUMENTS:

3. 1. The query regarding double pay for working the bank
holiday was responded to with a curt "No", with no
explanation. As no written contract was given to the
worker, he did not know that a day off was given in lieu
of double time.

2. Management was informed that the worker would not be
working on the bank holiday. Furthermore, the Company
was advised that the worker would report for work the
following day, which he did. The worker did not abandon
his employer and only refused to work the bank holiday
due to the unreasonable treatment by the employer.

3. The Company claims that the worker was not dismissed.
However, dismissal and suspension amount to the same
thing due to the fact that the week's suspension
corresponded to the week's notice given. Suspension
implies an eventual return to work.



COMPANY'S ARGUMENTS:

4. 1. When the worker raised the issue of double time with
management, the response was that it was an
inappropriate time to discuss that issue as the pub was
very busy at the time.

2. Neither member of management present on the 17th of
March was aware that the worker did not intend to
work that day. This fact only came to light when
another member of staff enquired about who was to
relieve him, and following subsequent discussions with
a member of the security staff.




3. It was never the intention of the Company to dismiss the
worker. Unfortunately, he left his colleagues in the
lurch and for that reason he was suspended for one week.



DECISION:
The Court, having considered all aspects of this case, finds no
reason to amend the Right Commissioner's Recommendation.

The Court, accordingly, rejects the appeal and upholds the Rights
Commissioner's Recommendation.

The Court so decides.
~
Signed on behalf of the Labour Court


1st August, 1995 Finbarr Flood
M.K./D.T. _______________
Deputy Chairman