FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FAN'S FLOWERS - AND - MS. TERESA CLERKIN DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Alleged Unfair Dismissal
BACKGROUND:
2. The Company operated as a flower shop from the 6th April, 1998 until its closure on the 6th May, 1998. The claimant was one of three workers employed as florists with the Company, from its inception, until their dismissal on the 6th May. She claims that, by dismissing her, the Company treated her unfairly. The Company rejects the worker's claim on the grounds that due to considerable losses it experienced in the first month of its existence there was no alternative but to cease trading . The worker referred the matter to the Labour Court, on the 23rd June, 1998, in accordance with Section 20(1) of the Industrial Relations Act, 1969. The Court investigated the dispute on the 1st September, 1998. The Company made a written submission to the Court but did not attend the hearing. The worker made a written submission to the Court, which was expanded upon during the course of the hearing.
WORKER'S ARGUMENTS:
3. 1. The worker did her utmost, along with her 2 colleagues, to make the business a success. However, the premises were not in a fit condition from the outset as building work was still incomplete, and there was neither lighting nor a till nor a range of other requirements (details supplied to the Court).
2. The worker was led to believe that the business would be a long-term venture when informed that her conditions would be reviewed after 3 months.
3. The manner of her dismissal was discourteous and rude, especially in view of the fact that the employer refused to provide a letter of dismissal or a reference. The employer took advantage of the enthusiasm an experience of her staff to set up in a business about which she had no knowledge or experience. The worker's dismissal was particularly shocking given that discussions concerning her roster had taken place only 1 day prior to the dismissal. The employer had not even the common decency to advise 2 of her staff of their dismissals, news of which was received from the 3rd member of staff.
4. The worker was only able to gain admission to the shop on the day of her dismissal because she had a detailed list of all of her property which was being used in the premises, and which she insisted on retrieving.
5. The claim by the employer that the business was closed due to its small turnover is rejected on the grounds that it would be reasonable to expect such a venture to be slow to start, especially in view of the state of unpreparedness of the premises. In any case, the amount of turnover was considerably in excess of the £131 claimed by the employer for the month. As much as £80 - £90 was received on some days during the month.
COMPANY'S ARGUMENTS:
4. 1. Over the first month of business, the operating loss amounted to over £3,000 and, accordingly, it was financially impossible to continue trading.
2. Subsequent to the closure of the shop, the premises remained open, manned by the employer and her niece, in an attempt to dispose of unsold stock. At no stage was an attempt made to mislead any member of staff.
3. The employer has fulfilled all obligations under employment law. A genuine redundancy situation exists in the present case in accordance with the provisions of the Redundancy Payments Acts, 1967-97, in that “the employer has ceased, or intends to cease, to carry out the business for the purpose for which the employee was employed”. There was no entitlement to a redundancy payment or notice of same under the Redundancy Payments Acts as the employee did not have 2 years’ continuous service, and there was no entitlement to notice under the terms of the Minimum Notice and Terms of Employment Acts, 1973-1991, as she did not have 13 weeks’ continuous service. Furthermore, all monies owing were paid in full, which included wages, annual leave and public holiday entitlements.
RECOMMENDATION:
The employer did not attend the Court hearing due to a previous engagement but
sent in a written background to the case.
The Court considered this submission, in addition to the written and oral submission of the claimant.
It is clear that the business had no chance of showing a profit in 4 weeks given the background problems of start-up. It is also clear that the employer had indicated her intention to continue for some months, at least, given her commitment to review the employee's salary after 3 months.
While the Court can understand the financial difficulties arising due to the slow take-off of the business, this does not excuse the manner in which the claimant was treated, not being told of her dismissal by her employer before the shop was closed and, subsequently, not being allowed into the shop to collect her belongings, although the shop was open for business.
Having considered all the information supplied, the Court finds that the manner of dismissal was unfair, and the treatment of this employee was unacceptable.
The Court recommends that the Employer pay the claimant £500 in compensation.
Signed on behalf of the Labour Court
Finbarr Flood
24th September, 1998______________________
B.C./M.K.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.