Labour Court Database __________________________________________________________________________________ File Number: CD95618 Case Number: AD961 Section / Act: S13(9) Parties: DUNNES STORES (Represented by MATHESON, ORMSBY, PRENTICE, SOLICITORS) - and - A WORKER |
Appeal against Rights Commissioner Recommendation ST114/95.
Recommendation:
The Court considered the views expressed regarding the
jurisdiction of the Rights Commissioner in proceeding to hear the
dispute on 16th October, 1995.
The Court finds that the wording of the Company's letter had in
the past been accepted as a valid objection, and accordingly it is
the view of the Court that the contents of the letter constituted
a valid objection. However, this letter of objection was not
received by the Rights Commissioner until the period specified in
Section 36 of the Industrial Relations Act, 1990 had expired.
Accordingly the Court is satisfied that the case was validly heard
by the Rights Commissioner, and that the appeal against his
findings is properly before the Court.
On the substantive case, and having considered all of the
submissions made by the parties, the Court finds that in all the
circumstances the Company did not act unreasonably in dismissing
the employee here concerned.
Accordingly the Court rejects the appeal of the claimant and finds
in favour of the Company.
The Rights Commissioner's Recommendation should be amended
accordingly.
Division: Mr McGrath Mr Keogh Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD95618 APPEAL DECISION NO. AD196
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
DUNNES STORES
(REPRESENTED BY MATHESON, ORMSBY, PRENTICE, SOLICITORS)
AND
A WORKER
SUBJECT:
1. Appeal against Rights Commissioner Recommendation ST114/95.
BACKGROUND:
2. The worker commenced employment with the Company on 7th
November, 1994 and claimed that she was subsequently
dismissed unfairly on 20th December, 1994. She referred the
dispute to a Rights Commissioner for investigation.
The Rights Commissioner's Secretariat notified the Company on
30th March, 1995 of an impending hearing and that any
objection to the investigation must be notified in writing
within three weeks of the postal date of their letter. On
7th September, 1995 the Company faxed a letter, dated 19th
April, 1995 to the Secretariat which stated that "While no
disrespect is intended we wish to inform you that the Company
will not be attending this hearing." The Rights Commissioner
found that "no proper objection as required by law was made
by the Employers in this case at any time" and, following his
investigation on 16th October, 1995 recommended as follows:-
"I recommend that the claimant was unfairly dismissed
and that she was denied her constitutional rights to
fair procedures including a right of representation
before the fact of dismissal and a chance to prepare a
proper defence to the real reason for her dismissal
which was her failure to show on the previous day which
was a Sunday and for which she had a defence.
By way of redress she has indicated that she prefers
compensation as she declares that she has lost all
confidence in the Employers' integrity and accordingly
it is clear to me that the essential bond of trust which
should exist between employer and employee has been
broken irrevocably.
The claimant lost about three months work as a result of
waiting around for promises from the Employers of
further employment which never materialised.
Accordingly I recommend that she receives 10 weeks' pay
at a rate of £100 net per week by way of redress."
The worker appealed the recommendation to the Labour Court on
25th October, 1995 in accordance with Section 13(9) of the
Industrial Relations Act, 1969. On 29th November, 1995 the
Company's solicitor objected to a Labour Court hearing,
claiming that the Rights Commissioner did not have
jurisdiction in this case, that a valid objection had been
made and that, therefore, there could be no appeal of his
recommendation. The Court agreed to examine the issue of
jurisdiction at the outset and, if deemed appropriate, to
then proceed to hear the appeal. The hearing took place on
5th December, 1995.
JURISDICTION
____________
Two staff members of the Rights Commissioner's Secretariat
attended the Labour Court hearing.
SECRETARIAT'S ARGUMENTS:
3. 1. No formal letter of objection was received in response
to the notification issued on 30th March, 1995. The
Secretariat telephoned the Company on 28th April, 1995
to arrange a date for the hearing and was told that the
dispute had been settled.
2. The worker involved in the dispute was abroad until 21st
June, 1995, at which time she denied that any settlement
had been reached.
3. Following a further telephone call to the Company on 7th
September, 1995 a letter was faxed to the Secretariat
dated 19th April, 1995. The Rights Commissioner ruled
that the letter was not a valid objection and had not
been received within the required time limit.
COMPANY'S ARGUMENTS:
4. 1. A letter of objection was sent to the Rights
Commissioner on 19th April, 1995. The Company was
unaware that it had not been received.
2. On 28th April, 1995 the Company received a telephone
call from the Rights Commissioner's Secretariat. The
Company understood that the case had been settled.
3. On 7th September, 1995, having been informed that the
hearing was proceeding, the Company faxed a copy of its
earlier objection to the Secretariat. A further
objection was sent on 20th September, 1995.
4. The terminology used in the letters was accepted
previously by the Rights Commissioner as an objection
and should, therefore, have been accepted in this case.
The Rights Commissioner had no jurisdiction to proceed
with the hearing and, consequently, the Labour Court has
no jurisdiction to hear an appeal.
APPEAL
______
WORKER'S ARGUMENTS:
5. 1. Due to illness on Sunday 18th December, 1994 the worker
was unable to attend for work. A telephone call was
made to the Company in this regard. Monday 19th
December, 1994 was her rostered day-off and, on
commencement of duty on Tuesday 20th December, 1994, she
was dismissed.
2. The initial reason given by the Company for terminating
the workers employment was that there was a lack of
work. However, the worker had been rostered for work
for all of that week. Upon contacting the Company the
worker's Aunt was given various other reasons for her
dismissal, including bad timekeeping.
3. Casual staff were not permitted to clock-in for work
before 10.00 a.m. Consequently, due to a queue, many
workers clocked-in a number of minutes after 10.00 a.m.
If the worker needed to leave early when working
'late-night' she asked permission to leave.
4. The Company promised to arrange an interview for another
job. No correspondence was ever received and the job
did not materialise.
COMPANY'S ARGUMENTS:
6. 1. The worker was employed for the 1994 Christmas season
and was due to finish her employment on Christmas Eve.
She was dismissed on 20th December, 1994 following a
series of warnings. She was paid up to Christmas Eve
and therefore suffered no loss of income.
2. The worker commenced work with the Company on 7th
November, 1994. She had to be reprimanded for leaving
work early without permission on the 9th, 10th, 18th
November and the 8th and 17th December, 1994. On the
25th November, 1994 she asked permission to leave early.
On Friday 16th December, 1994 the worker was caught
leaving her department early while the shop was still
open. When confronted by management she refused to
return to her till and left.
3. The worker showed a consistent lack of commitment to her
job and the responsibility of preparing her department
for the next day's business was left to others. She did
not attend for work on Sunday 18th December, 1994 and no
telephone call was received to explain her absence.
4. On 23rd January, 1995 the Company rang the worker to
notify her of an interview for a job at 2.00 p.m. on
26th January, 1995. A member of her family took the
massage but the worker did not attend the interview. No
reply was received to subsequent telephone calls.
DECISION:
The Court considered the views expressed regarding the
jurisdiction of the Rights Commissioner in proceeding to hear the
dispute on 16th October, 1995.
The Court finds that the wording of the Company's letter had in
the past been accepted as a valid objection, and accordingly it is
the view of the Court that the contents of the letter constituted
a valid objection. However, this letter of objection was not
received by the Rights Commissioner until the period specified in
Section 36 of the Industrial Relations Act, 1990 had expired.
Accordingly the Court is satisfied that the case was validly heard
by the Rights Commissioner, and that the appeal against his
findings is properly before the Court.
On the substantive case, and having considered all of the
submissions made by the parties, the Court finds that in all the
circumstances the Company did not act unreasonably in dismissing
the employee here concerned.
Accordingly the Court rejects the appeal of the claimant and finds
in favour of the Company.
The Rights Commissioner's Recommendation should be amended
accordingly.
~
Signed on behalf of the Labour Court
12th January, 1996 Tom McGrath
D.G./D.T. _______________
Deputy Chairman