FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HOLLISTER ULC (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal by the Union against Rights Commissioner's Recommendation No. CW246/96.
BACKGROUND:
2. The company manufactures medical/surgical products for the European market and employs 200 workers. The appeal concerns a worker who was hired on a temporary employment contract which was of six weeks' duration. The conditions of his employment were set out in the Company/Union Agreement. Following a number of incidents relating to attendance at work (3rd/4th of July, 1996) and a time-keeping infringement (28th of June, 1996) the Company terminated his employment on the 5th of July, 1996. As a result of representations made by the Union the worker was re-instated under suspension with full pay pending a further investigation. The investigation took place on the 19th of July, and the worker's employment was terminated as from 22nd of July. The Union claimed that the worker was unfairly dismissed. The Company rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 28th of November, 1996 the Rights Commissioner issued his recommendation as follows:-
"I recommend that the Union and the worker accept that the dismissal was fair."
(The worker was named in the Rights Commissioner's recommendation).
On the 13th of December, 1996 the Union appealed the Rights Commissioner's recommendation to the Labour Court. The Court heard the appeal in Galway on the 13th November, 1997. (The earliest date suitable to the parties).
UNION'S ARGUMENTS:
3. 1. The Union accepts that the incident of the 28th of June, in relation to clocking out did occur.
2. The worker was of the opinion that his request for a shift change on the 3rd/4th of July was approved by Management. On the 5th of July, the worker was asked to attend a meeting with two relatively senior managers. But he was not represented by his Union at that meeting. He was not afforded fair procedures in this instance.
3. During the investigation of the 19th of July the Union made it clear to the Company that the outcome of the meeting of the 5th of July was in dispute. The worker gave assurances regarding his attendance and time keeping at the meeting of the 19th of July. The Comapny subsequently terminated the worker's employment.
4. The Union contends that the decision to terminate the worker's employment was made at the meeting of the 5th of July. The outcome of that meeting was in dispute. The Union believes that despite the investigation on the 19th of July, the Company did not intend to change its decision to dismiss the worker on the 5th of July.
5. The Union seeks the re-employment of the worker for a further six week period.
COMPANY'S ARGUMENTS:
4. 1. In his second week at work, the worker concerned committed a serious clocking offence and was warned regarding his future behaviour. In his third week at work, he failed to turn up for his scheduled shift on two consecutive days. Management had to make a judgement regarding serious conflicts of evidence, on both the question of permission relating to these two shift change incidents and on what was said in the discussions and meetings between the worker, his supervisor and the Personnel Officer.
2. The worker's employment was subject to a three month probationary period, as set out in his appointment letter and in the Company/Union Agreement. Management concluded that the worker did not have a responsible attitude towards his employment and that he had not been straight forward in his dealings with the supervisors involved. The Comapny decided that the worker's employment be terminated with effect from the 22nd July, under the probationary period provisions referred to above.
3. Under the probationary period provision of the Company/Union Agreement, Management had the sole right to decide on the worker's suitability as an employee and to terminate his employment without reference to the Grievance and/or Disciplinary Clauses of the Agreement. The Company further believe that, in this case, it has exercised its rights in a more than fair and reasonable manner and requests the Court to uphold the Rights Commissioner's recommendation.
DECISION:
The Court, having carefully considered the written and oral submissions as presented, sees no reason to change the recommendation of the Rights Commissioner.
The Court so decides.
Signed on behalf of the Labour Court
Kevin Duffy
24th November, 1997______________________
T.O'D./D.T.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.