FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BWG FOODS LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Dispute concerning the alleged unfair dismissal of a worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company as a customer services co-ordinator on the 6th of October, 1997. The appointment was subject to a six months' probationary period. The worker was dismissed on the 15th of January, 1998. She claimed that the dismissal was unfair and on the 16th of March, 1998 referred a complaint to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969. The worker agreed to be bound by the Court's recommendation. A Court hearing was held on the 21st of April, 1998.
WORKER'S ARGUMENTS:
3. 1. The worker left another job where she had spent nearly two years to take up the post (which she was assured would be permanent) with the Company. At the end of the first week the worker felt that she was fitting into the job well and had developed good customer relations. She had not come across any problems. After a few weeks her Manager stated that she was happy with the worker's performance but that she seemed to have little interaction with colleagues in the office. The worker explained that this was not her fault as there was an uncomfortable atmosphere there specifically with one worker (details supplied to the Court).
2. The worker got no help from Management on this issue and on seeking independent advice was told she was being bullied. She was advised to make a formal complaint to her Manager. On doing so she was told that the worker complained of was a long serving employee and nothing could be done.
3. When the worker was ill from the 31st December she informed the Company by phone and also submitted medical certificates from her doctor. On return to work on the 14th of January, 1998 the worker was assured by her Manager that she had received the phone calls and sick certificates.
4. The worker was then advised to attend a disciplinary meeting later that day but was not clear as to the exact nature of the meeting. The worker was informed she was unreliable, incompatible and non-compliant. She queried this analysis of her performance as she had received no warnings either verbal or written. Management mentioned a 'blatant breach' of Company procedure. This was never clarified to the worker and she is still unaware of which procedure she breached to warrant instant dismissal.
5. The worker was dismissed in an arbitrary and unfair manner contrary to procedures. She received no warnings verbal or written. She subsequently found it difficult to rejoin the workforce. The worker received no reference and plans for her future have been put on hold. She seeks appropriate redress.
COMPANY'S ARGUMENTS:
4. 1. The Company conducted a number of reviews of the worker's performance during the period of her employment and Management assessed her in relation to work performance, sickness and overall suitability. The worker was persistently unreliable and was absent for a total of 15.5 out of 67 days (23%). This problem was further compounded by the fact that the absence at this time was uncertified sick leave except for the 29th and 31st of October, 1997. The worker remedied this situation by submitting retrospective medical certs. covering the period 31st of December - 12th January, 1998. She was late for work on a number of occasions.
2. The claimant was also unreliable in her work performance (details supplied to the Court) and Management expressed its concerns to her in a review held in December. Her work performance did not improve.
3. The claimant experienced difficulties in her working relationships with colleagues and a formal complaint was registered against her by another staff member. The worker made spurious allegations about a work colleague which she failed to substantiate. She later withdrew the allegations.
4. In the circumstances, the difficulties experienced by the Company in relation to the employee's work performance and behaviour left Management with no alternative but to terminate her employment within the probationary period.
RECOMMENDATION:
While the dismissal which gave rise to this dispute was within the worker's probationary period, during which the company were entitled to assess her suitability for continued employment, it clearly arose from what were regarded as disciplinary matters. The Court considers the procedures followed by the Company in investigating those matters as deficient. The worker was not given adequate advance notice or detail of the complaints against her or a sufficient opportunity to prepare a defence. In that regard the Court has taken account of the Code of Practice on Disciplinary Procedures made under Section 42 of the Industrial Relations Act 1990 (S.I. No. 117 of 1996).
In the circumstances the Court considers that the worker was treated unfairly. Taking into account that the Company could legitimately have terminated her employment during the probationary period on grounds of unsuitably, the Court recommends that she be paid a lump sum equal to two weeks pay in full and final settlement of all claims and that she be provided with a suitable reference.
Signed on behalf of the Labour Court
Kevin Duffy
24th June, 1998______________________
T.O'D./D.T.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.