FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ABAKIN LIMITED - AND - A WORKER DIVISION : Chairman: Mr Flood Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation No. RC722/97
BACKGROUND:
2. The Company is involved in the building trade, supplying and installing cubicles, partitions and suspended ceilings. The worker was employed by the Company for approximately 10 years. The worker's claim is that he was effectively made redundant by the withdrawal of work from him by his employer. Both parties agreed that they had a good working relationship for most of the 10 years that the worker was employed. Problems began when the employer returned from a serious illness in August, 1996. The employer claims that the worker was no longer willing to do the work he had previously done, and was proving inflexible in his attitude. The worker maintains that the employer's personality had changed during the illness and that he, the worker, was no longer given duties and responsibilities he previously had. The employer continued to pay the worker for some time despite the fact that he was doing no work. In May, 1997, the worker claims that the employer told him that he could no longer afford to insure and tax the van that the worker drove. The worker decided that without the van there would be no further work for him, and he submitted an RP9 form to his employer with the intention of claiming redundancy. The dispute was referred to a Rights Commissioner and his recommendation is as follows:-
"It is difficult to get to the bottom of what went wrong in the relationship between the parties to this dispute. I am satisfied, however, that action tantamount to dismissal was taken against the claimant. I find, therefore, that a dismissal took place but not by virtue of redundancy. I further find that the dismissal was unfair and recommend re-engagement of the claimant effective from the earliest date suitable to him within the next six weeks."
(The claimant was named in the recommendation)
Both parties appealed the recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1996. A Labour Court hearing took place on the 12th of January, 1998.
WORKER'S ARGUMENTS:
3. 1. The worker had given 10 years loyal service to the Company. This is acknowledged by the employer. During his final months of employment, the worker was subjected to increasing harassment by the employer. The harassment began after the employer returned from a serious illness. Other workers in the Company commented on the employer's changed behaviour. During this period, the employer allocated all the worker's duties to sub-contractors. The worker was told that there was no work available for him and that he was incapable of doing his job. The employer refused to insure or tax the van used by the worker. As this was the worker's main job, he decided to claim his redundancy. The employer refused to pay the redundancy.
COMPANY'S ARGUMENTS:
4. 1. Following the employer's return from illness, the worker concerned refused to co-operate as he had before. He would not use his mobile phone or communicate instructions to the other workers. This resulted in other workers sitting idle. As a result, the Company started to lose business. The employer had to let a number of workers go and the Company has continued to lose money. The Company retained the worker for a number of months and continued to pay him although he was doing no work. Part of the worker's problem was that another employee was on a higher rate of pay than he was. The worker was not dismissed or made redundant as he claims. Following the Rights Commissioner's recommendation, the employee was offered his job back by the employer but he refused it.
DECISION:
It is clear that a long standing working arrangement that had worked well for both parties for many years had come to an end for whatever reason.
While there is a conflict of evidence as to why this happened, the Court is of the view that the employee was not prepared to carry out his duties as he had in previous years and that the employer had, by refusing to provide work for him, left his dismissal as inevitable.
The Court is of the view that fault was on both sides in this unfortunate situation and, having considered all the information supplied, upholds the Rights Commissioner's recommendation and dismisses both appeals.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
21st January, 1998______________________
C.O'N./D.T.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.