Labour Court Database __________________________________________________________________________________ File Number: CD95690 Case Number: AD963 Section / Act: S13(9) Parties: AER RIANTA - and - MANDATE |
Appeal of Rights Commissioner's Recommendation DC 101/95.
Recommendation:
Having considered the submissions from the parties, the Court has
concluded that the Rights Commissioner's Recommendation is not
unreasonable in the circumstances and should be upheld.
The Court, accordingly, rejects the appeal and so decides.
Division: Ms Owens Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD95690 APPEAL DECISION NO. AD396
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
AER RIANTA
AND
MANDATE
SUBJECT:
Appeal of Rights Commissioner's Recommendation DC 101/95.
BACKGROUND:
The appeal was made by the Union on behalf of one worker who
was appointed to the position of casual Sales Assistant in
the Duty-free shop at Dublin Airport for the Summer season in
1995. She commenced a 6-day training course on the 18th of
April, 1995. On the 5th day of the course, she was told that
she had been too slow operating a register. She enquired
about positions in merchandising but was advised that there
were none available. On the completion of her training,
having originally been informed that she would not be on the
roster, and having outlined the sequence of events, the
worker was placed on a roster for 1 day. After 2.5 hours
working on the register in the Tax Free shop, overseen by the
Duty manager, she was informed that her employment was to be
terminated. Following intervention by the Union, the worker
was interviewed in regard to possible promotional work, but
was unsuccessful. Having concluded that she was unsuitable
for employment in the position for which she was selected to
fill, the Company removed the worker from the panel of Casual
Sales Assistants and offered her a compensatory sum of £200,
which was declined. The Union referred the dispute to a
Rights Commissioner for investigation and recommendation.
The Rights Commissioner found as follows:-
"that the principal element in this case was that it was
not made specifically clear to the claimant that, having
passed the interview stage, her week's training was a
probationary period, during which her suitability for
appointment and commencement of employment would be
further assessed, and it behoves the Company to adjust
their procedures in that regard for the future to
obviate a recurrence of a case like this.
I accept that having actually started work the claimant
had an expectation of continuing but it must also have
been fairly obvious to her from the train of events that
despite her best intentions she had simply shown
substantial incompatibility to the Company's
requirements from her, as an employee."
As he did not believe that this criterion was likely to
alter, he did not consider reinstatement to be a viable
option but recommended that the Company should pay the worker
an ex-gratia lump sum of £500, which she should accept in
full and final settlement of her claim.
The Union appealed the Rights Commissioner's Recommendation
to the Labour Court, on the 8th of December, 1995, in
accordance with Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on the 16th of
January, 1996.
UNION'S ARGUMENTS:
1. During the training, the class was advised that, if an
individual's performance was not to the Company's
satisfaction, additional training would be given. On day 4,
the worker experienced no difficulty with the cash handling
procedures, work that she was engaged in up to 3 years before
applying to the Company.
2. It was not until day 5 that her performance was criticised.
When she offered an explanation, she was insulted and
embarrassed by the Company who nevertheless advised her to
resume her training. The next day the worker was further
isolated and demeaned by having to argue her right to an
equal opportunity to prove herself when a roster was not
available. When she outlined the sequence of events of the
previous couple of days, a one-day roster was produced
although the other applicants got 3-day rosters, free from
controversy. At no stage was she advised that she would
receive any additional training as outlined on day 1 of the
training programme.
3. A worker's first day is always a stressful and daunting
experience. This worker's nervousness was further
exacerbated by the Company's mismanagement of a situation
that required nothing more than a little tact, diplomacy and
patience.
4. The Rights Commissioner erred in his Recommendation in
stating that it must have been obvious to the worker from the
train of events that she had simply shown substantial
incompatibility to the Company's requirements from her as an
employee. The worker believed that she should have been
given every opportunity to prove herself a compatible
employee to the Company's requirements. 2.5 hours of
actual working time hardly affords a person the opportunity
to prove themselves compatible.
5. The Rights Commissioner erred in stating that he believed
that reinstatement was not a viable option. To the worker,
this is the only option that will allow her prove herself
compatible to the Company's requirements. She is not
requesting meaningful demonstrations of the Company's
sympathy by way of ex-gratia lump sum payments.
COMPANY'S ARGUMENTS:
1. The Company prides itself in the level of training given to
new recruits to prepare them to meet the required standard.
This worker was given every opportunity to improve her
performance and was given a further opportunity at the
completion of her training.
2. The Company operates in a very aggressive market and there is
a limit to the amount of time that can realistically be
allowed for one individual. The Company's commercial
business is one of high quality and customer service
orientated. It must, of necessity, be fast and efficient to
meet the needs of customers who are under time pressure to
complete their shopping before they depart on flights.
Therefore, it is essential that frontline commercial staff
can deliver this service in an efficient manner if sales are
to be maintained.
3. The Company was forced to conclude that the worker was
unsuitable for the position she had been selected to fill,
and had no choice but to remove her from the panel.
4. The Company has acted fairly towards the worker in its
handling of this issue and the recent offer of compensation
has been generous in the circumstances. The Company does not
wish to reinstate the worker as she is considered unsuitable
for the position of Sales Assistant.
DECISION:
Having considered the submissions from the parties, the Court has
concluded that the Rights Commissioner's Recommendation is not
unreasonable in the circumstances and should be upheld.
The Court, accordingly, rejects the appeal and so decides.
~
Signed on behalf of the Labour Court
18th January, 1996 Evelyn Owens
M.K./A.K. ------------
Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Michael Keegan, Court Secretary.