Labour Court Database __________________________________________________________________________________ File Number: CD9640 Case Number: LCR15131 Section / Act: S20(1) Parties: 3COM (IRELAND LTD.) (Represented by S.M.A. CONSULTANTS) - and - A WORKER |
Alleged unfair dismissal.
Recommendation:
The Court is satisfied that the dismissal of the claimant was not
unfair and, accordingly, the claim is not sustained.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD9640 RECOMMENDATION NO. LCR15131
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: 3COM (Ireland Ltd.)
(represented by S.M.A. Consultants)
and
A WORKER
SUBJECT:
1. Alleged unfair dismissal.
BACKGROUND:
2. The Company is involved in the manufacture of printed circuit
boards for network systems. The worker commenced employment with
the Company on the 17th of October, 1994, in the capacity of
product tester, operating an automatic test machine. On the 22nd
of August, 1995, she was dismissed on the grounds that she had
exceeded the Company's absence tolerance level of 2% and also that
she had not complied with the rules concerning the wearing of
safety glasses. The worker claimed that her dismissal was unfair
as she had not been made aware of the Company's policy on
absenteeism. She also claimed that the wearing of safety glasses
had caused her considerable discomfort. She sought to have the
matter of her dismissal investigated by a Rights Commissioner, but
the Company declined to attend an investigation, on the grounds
that it believed that the worker had not been unfairly treated.
The issue was referred, by the worker, to the Labour Court, on the
5th of January, 1996, in accordance with Section 20(1) of the
Industrial Relations Act, 1969. The Court carried out its
investigation the 25th of March, 1996.
WORKER'S ARGUMENTS:
3. 1. The worker did not receive a copy of her terms of
employment and was, therefore, unaware of Company's rules
regarding absenteeism. Had she been aware of the
Company's policy on absenteeism, she would have been in a
position to take action to avoid excessive absences.
2. The Company's claim that the worker was guilty of
"excessive absenteeism" is unreasonable as her total
absence amounted to only 48.5 hours, of which two full
days were covered by medical certificate.
3. Two instances of her absence arose when she was sent home
at the insistence of her supervisor and not at her own
request. Accordingly, her absence cannot reasonably be
deemed to have been excessive.
4. At no time was she warned about her alleged absenteeism,
either verbally or in writing.
5. At the time of her last illness, immediately prior to her
dismissal, the worker was 4 months pregnant. She
believes that this had a bearing on the Company's
decision to dismiss her.
6. Regarding the issue of the safety glasses, the worker was
being caused considerable discomfort and could not wear
them for prolonged periods. Complaints by herself and
her colleagues about the safety glasses had been ignored
by management.
COMPANY'S ARGUMENTS:
4. 1. The worker was given corrective counselling in early
June, 1995, at which the issues of safety glasses and
absenteeism were raised. The rule, unequivocally known
to all employees, that the Company absence tolerance
level is 2% was emphasised to her, as was the fact that
her absence level since March was 5.5%. (The Company
operates a corrective counselling procedure, rather than
a formal disciplinary procedure, i.e., it asks its
managers to seek improvement in performance or
deficiencies in conduct through informal chats and an
agreed personal plan, rather than issue a succession of
written warnings).
2. The worker missed a further shift through absence on 27th
June and then was on annual leave for most of July. She
failed to return to work on the shift immediately
following the August Bank Holiday. She was absent, with
a certificate she produced, for all three shifts that
week.
3. During the following week, the Company reviewed her
performance as a temporary employee, i.e., her work
performance, safety orientation and attendance (7.6%
absenteeism since March). It was decided that, having
regard to all aspects of her performance and the
difficulties two of her supervisors and her line manager
had experienced in seeking improvement in her
performance, along with the fact that her contract had
only one month to run, that her supervisor should
interview her.
He interviewed her on 14th August, 1995. He was not
satisfied that the required improvement would be
forthcoming and he informed her that the Company was
invoking the early termination clause in her contract,
from that date, with one week's pay in lieu of notice, in
accordance with the terms of the contract. He advised
her of this at the conclusion of the interview and she
responded that she was not surprised by the decision.
RECOMMENDATION:
The Court is satisfied that the dismissal of the claimant was not
unfair and, accordingly, the claim is not sustained.
~
Signed on behalf of the Labour Court
Evelyn Owens
3rd April, 1996 -----------------
M.K./U.S. Chairman
NOTE:
Enquiries concerning this Recommendation should be addressed to
Mr Michael Keegan, Court Secretary.