FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : INTERNATIONAL CONTRACT CLEANERS LIMITED (REPRESENTED BY DR. MARY REDMOND) - AND - A WORKER (REPRESENTED BY BUILDING AND ALLIED TRADES' UNION DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal against Rights Commissioner's Recommendation No. 584/96.
BACKGROUND:
2. The Company is involved in the cleaning, restoration and repair of stone/brick work. In November, 1995 it secured a contract for stone/brick replacement and the cleaning of the exterior of McKee Barracks.
The worker commenced employment with the Company on the 9th September, 1996 and his employment was terminated on 30th September, 1996. The worker was given one week's wages in lieu of notice.
The Company claims that it was unhappy with the worker's standard of workmanship, and also claims that the worker absented himself from the site on several occasions for the purpose of signing for Unemployment Benefit.
The Union rejects the Company's claims. The worker concerned has over twenty years experience as a bricklayer and is highly thought of in the building industry. The claim that the worker was "signing on" for unemployment benefit is also refuted.
The Union referred the dispute to a Rights Commissioner. The Rights Commissioner investigated the dispute on the 4th November, 1996 and recommended as follows:-
"One is in no doubt that the Company's submission was made in absolute good faith. In response to questions they were very clear that over the three weeks of his employment, the claimant left the site at regular intervals for the purpose of "signing on". The information obtained from the Department of Social Welfare does not support this claim. In the light of the foregoing I must find the decision
to dismiss to be unfair.
While the claimant stressed that he was seeking re-instatement I do not consider this to be an appropriate response in the particular circumstances. I recommend a compensation payment of £1500".
The Company appealed the Recommendation to the Labour Court on the 4th March, 1997. The Court heard the appeal on the 26th May, 1997 under Section 13(9) of the Industrial Relations Act, 1969.
COMPANY'S ARGUMENTS:
3. 1. International Contract Cleaners Ltd. (ICC) was never the worker's employer. The Rights Commissioner erred in law and in fact in assessing that the Company was his employer.
2. The Company had a sub-contracting arrangement with Irish Conservations and Cleaning Ltd. (IConC) who employed the worker.
3. The work on site changed from laying bricks to the technically more difficult work of putting in chimneys. The employee's work deteriorated from this point.
4. The architect complained about the standard of the brickwork carried out on the chimneys. As a result, the brickwork on the chimneys had to be taken down and rebuilt.
5. The worker was at all times employed by Irish Conservations Cleaning Ltd. (IConC). He was paid by cheque by IConC, and received his P45 from IConC.
UNION'S ARGUMENTS:
4. 1. The allegation of Social Welfare abuse was fully investigated. The Department of Social Welfare advised that no abuse had taken place.
2. The worker concerned has over twenty years' service as a bricklayer and is highly regarded in the construction industry as a skilled craftsman.
3. The worker was required to build a sample chimney at McKee Barracks which comprised of 200 bricks. This sample work was passed by the Architects/Consultants as to what was required for the contract undertaken.
4. No complaint was ever received from his previous employer or International Cleaners concerning the quality of his work. He never received either a written or verbal warning.
DECISION:
It is contended on behalf of International Contract Cleaners Limited (ICC) as a preliminary point in this case that ICC was not the employer of the worker.
The Court is satisfied that two persons attended the Rights Commissioner's hearing namely Mr. John McNamara and Mr. Henry Snell, leading the Rights Commissioner to believe he was dealing with the Employer. The Court is informed that Mr. McNamara is the Managing Director of ICC and that Mr. Snell is a director of Irish Conservation and Cleaning Limited (IConC), and that it is IConC which is the employer rather than ICC.
Having represented itself as an employer by attending the Rights Commissioner's hearing in that capacity, the Court finds that ICC is now estopped from denying the employment relationship. And since IConC also represented itself as outlined above by attending the Rights Commissioner's hearing, it will not suffer any detriment by now being associated formally with the decision of the Court on this appeal as the employer.
The Court's decision is therefore addressed to both ICC and IConC as the employer.
On the substantive matter of the justification or otherwise for the dismissal no satisfactory evidence has been given to the Court that the work of which the employer complained was in fact the work of this worker.
It is clear to the Court, furthermore, that no warnings, either written or verbal, were given to the worker prior to his sudden dismissal.
Taking all the aspects of this case into account, the Court rejects the appeal and upholds the Recommendation of the Rights Commissioner, subject to the amendment that the compensation payment of £1,500 is payable by either or between ICC and IConC as employer.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
18th July, 1997______________________
L.W./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.