FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EIRFAB ENGINEERING LIMITED (REPRESENTED BY KINSELLA AND HEFFERNAN, SOLICITORS) - AND - A WORKER (REPRESENTED BY NOLAN FARRELL AND GOFF, SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Mr Walsh |
1. Appeal by the Company against Rights Commissioner's Recommendation No. BC 218/95.
BACKGROUND:
2. The dispute concerns a worker who commenced employment with the Company, as a fitter, on the 7th of November, 1994. His employment was terminated on the 16th of December, 1994. His dismissal was precipitated by a disagreement which arose between the worker and the Company Manager, relating to working arrangements for the public holiday Monday, the 2nd of January, 1995.
The matter was the subject of a Rights Commissioner's investigation which initially took place on the 15th of August, 1995, at which the Company attended and at which the worker was represented. The investigation was adjourned in order to enable the worker's representative to take instruction and the resumption took place on the 24th of May, 1996, at which the Company did not attend nor was it represented. The Rights Commissioner proceeded with his investigation as he "already had a very full statement from the employer as to its position".
The Rights Commissioner found, inter alia, that the worker was dismissed on the date in question and that the dismissal "must be deemed to be unfair". He recommended that the Company pay the worker the sum of £1,000 and that this be accepted by him in full and final settlement of all claims on the employer.
The Company appealed the Recommendation, on the 20th of June, 1996, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal, in Waterford, on the 3rd of December, 1996. Both parties made written submissions to the appeal, upon which they expanded orally during the course of the hearing.
COMPANY'S ARGUMENTS:
3. 1. The worker was not qualified by length of service to make a claim for unfair dismissal.
2. The decision of the Rights Commissioner was procedurally unsound in that it failed to give the employer a proper hearing. It is based on the incorrect conclusion that the Company was unwilling to attend. A prior scheduled hearing on the 15th August, 1995 was adjourned because the worker was in Germany. When the Company was notified of the re-scheduled hearing it sought a postponement of the hearing to a later date. The Rights Commissioner proceeded to hear the case on the basis that the Company was unwilling to attend. Furthermore, the findings of the Rights Commissioner were based on the unwarranted conclusion that the Company's case had already been fully put.
3. The only basis of the employee's claim would be in common law for wrongful dismissal before the ordinary Civil Courts. In those circumstances it would be contended that no contractual term was breached, the employee's refusal to work when properly requested to do so and his gross abusiveness towards his employer, in front of other employees, justified his summary dismissal (details supplied). There was no breach of any agreed grievance procedure in relation to the worker.
WORKER'S ARGUMENTS:
4. 1. There was never any agreement between the Unions and the Manager about working the public holiday Monday in question. When the worker indicated to the Manager that he would only work the bank holiday if he received overtime payments and, subsequently, that there had been a consensus amongst the workers in the canteen not to work the Monday, the Manager responded that "if that is your attitude, I am giving you a week's notice". The worker was then paid to date and told to leave the premises.
2. The worker was not abusive towards the manager and he is not an aggressive person by nature.
3. The conversation between the worker and the Manager took place in the privacy of the Manager's office and was not witnessed by any other workers.
4. The worker was dismissed unfairly in that the dispute over working the public holiday had to do with all workers, not just with the dismissed worker.
5. The manager himself stated that there was never any problem with the quality of the work of the dismissed worker.
DECISION:
There is a conflict of evidence in relation to the events leading up to and around the dismissal of the Claimant.
Taking into account all the information before it, the Court believes that a more appropriate figure in settlement of this claim would be £750.
The Court, therefore, amends the Rights Commissioner's Recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
19th December, 1996______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.