FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MAYSTEEL TEORANTA (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION DIVISION : Chairman: Mr McGrath Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal by the Union of Rights Commissioner's Recommendation No. CW 178/96.
BACKGROUND:
2. The Company produces precision sheet-metal products at its plant in Inverin, Co. Galway. The appeal concerns a worker who worked at the Company as a general operative from January, 1996 until his dismissal in May, 1996. The Union claimed that his dismissal was unfair because it had been without warning and also because the Company had ignored Clause 2 of the Company/Union agreement which deals with procedures to be followed during probationary periods. The Company responded that the worker's performance had been inadequate and that while the Company had not followed the letter of Clause 2, it had complied with the spirit of the Clause. The dispute was the subject of an investigation by a Rights Commissioner, who found that the Company acted reasonably in terminating the worker's employment, even though it did not comply with Clause 2. He recommended as follows:-
(i) that a sum of £330, representing two weeks' wages, be paid by the Company to the worker in recognition of the earlier termination date arising from the Company's non-observance of Clause 2;
(ii) that the Company commit itself either to full observance of freely negotiated Agreements or, if they have a difficulty with any aspect of such Agreements already in place, seek to negotiate changes in the normal way.
The Union appealed the Recommendation to the Labour Court, on the 12th of December, 1996, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal, in Galway, on the 26th of February, 1997.
UNION'S ARGUMENTS:
3. 1. The compensation recommended is insufficient, as the worker was unemployed for 19 weeks following his dismissal, losing £2,470 in earnings.
2. The difficulties cited by the Company on the worker's performance were not raised during his employment. The lack of performance was raised only on the day of his dismissal. This was unfair.
3. The Company were in breach of Clause 2 of the Company/Union agreement, in dismissing the worker.
4. The worker is not seeking reinstatement as he now employed elsewhere. Accordingly, the amount of compensation recommended should be increased substantially.
5. Specific complaints raised by the Company concerning the worker's performance are rejected. It would be impossible to pin down imperfections in product to one individual working as part of a team.
COMPANY'S ARGUMENTS:
4. 1. On a number of occasions and in various ways the worker's performance was below the level that could be considered acceptable (details supplied to the Court).
2. The Company, while accepting that it was in breach of Clause 2 of the Company/Union agreement, felt that it had complied with the spirit of that agreement in its handling of the situation. Accordingly, the worker was paid 2 weeks' pay in recognition of the early termination date.
3. The worker was given plenty of chances, considering the inadequacies in his performance. However, incidents where he was seen reading a newspaper by a Company Director and when he finished work early were, in effect, the final straw.
DECISION:
The Court, having considered all of the issues raised by the parties in their oral and written submissions, considers that the employee here concerned should be paid a lump sum equivalent to the difference between his pay received and six months' pay.
The Rights Commissioner's Recommendation should be amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Tom McGrath
18th of March, 1997______________________
M.K./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.