FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TRINITY COLLEGE - AND - A WORKER (REPRESENTED BY THE AMALGAMATED ENGINEERING AND ELECTRICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr Rorke |
1. Appeal against Rights Commissioner's Recommendation IR 404/99.
BACKGROUND:
2. The worker was appointed to the position of plumber in Trinity College on the 25th of May, 1998, subject to the satisfactory completion of one year's probation. He was dismissed from the job on the 18th of May, 1999. The Union claims that dismissal was unfair. The reason the College gives for the dismissal is that the worker was absent from his job without permission on the 14th of May. (The College also referred to another incident in November 1998, when the worker had been given permission to leave work early at 4.00 pm, but had left at 3.00 pm). The following is the College's view of what happened;
On the 14th of May, 1999, the worker's supervisor visited Trinity Hall in Dartry where the worker was employed for the day. Following a lunch break, the supervisor returned to Trinity Hall at 1.45 p.m. to collect some equipment he had forgotten. He discovered that the worker was missing. He waited until 2.50 p.m. and then returned to Trinity as the worker had still not turned up. The worker returned at 3.00 p.m. and telephoned the Deputy Buildings Officer. He said that he had driven into the city to pay a bill and had been delayed in traffic.
On the 17th of May, a meeting took place between management, the worker and the Union shop steward. The worker was advised that at the end of his probationary period (25th of May) he would not be made permanent. The Union claims that the following occurred on the 18th of May;
The worker was requested by his co-ordinator to go to the personnel office to talk about a personal matter. The worker did not think that he needed the shop steward with him and went without him. The co-ordinator then telephoned the shop steward and told him that the meeting with the worker would cover a 'broader context' than the personal matter. The co-ordinator would not tell the shop steward what the broader context was, or whether the shop steward should attend the meeting. The shop steward met up with the worker and told him what had happened. However, the worker decided to proceed to the meeting on his own. When the personal matter was dealt with, the worker was told that his employment would finish at 5.30 p.m. that day, and he was handed a letter confirming this. The worker informed the shop steward of what had happened, and he in turn contacted management and challenged them on the nature of the dismissal.
The worker was paid one week's pay in lieu of notice.
An appeal hearing took place between the parties on the 24th of May. The worker did not attend due to a misunderstanding between himself and the shop steward. As there was no change in the situation, the Union referred the case to a Rights Commissioner, and her recommendation is as follows:
"The dismissal was unfair. The worker should be re-engaged on the following terms:
1.The period from 21st of May to 12th of July should be regarded as suspension without pay.
2. The worker's probation should be extended to 31st of December, 1999.
3. Any increment due should be paid only after permanency is confirmed.
4. The worker should receive a final written warning regarding his behaviour to remain on his file for twelve months after the completion of probation.
5. The worker's performance on probation should be reviewed with him at monthly intervals.
6. The AEEU should counsel the worker in line with the terms detailed at the hearing."
(The worker was named in the above recommendation.)
The College appealed the recommendation to the Labour Court on the 8th of July, 1999, in accordance with Section 13 (9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 20th of August, 1999.
COLLEGE'S ARGUMENTS:
1. The worker absented himself without permission. He had already been warned in November, 1998, that this was unacceptable behaviour. On 7 previous occasions, the worker had asked for and been given permission to take time off work. He should had asked permission on this occasion. The College did not feel that it could trust the worker.
2. It was not the College's fault that the worker was not present at the appeal hearing on the 24th of May. The Union had already cancelled one meeting. The worker's presence would not have affected the College's view of the matter, as it had already dismissed him.
3. If it is seen by newly-appointed staff that workers on probation could get away with serious misconduct, it would undermine the purpose of the probationary period.
UNION'S ARGUMENTS:
1. The worker was unfairly dismissed. He was only approximately one hour late in returning to work and apologised to the Deputy Buildings Officer when he returned. The matter that caused him to be late was urgent. This was not a case of gross misconduct.
2. The worker was given no verbal or written warning in relation to the incident on the 14th of May. The "warning" in November, 1998 was not official.
3. The worker had no idea what was going to happen at the meeting on the 18th of May, when he was dismissed. Had he known, he would have asked the shop steward to be present.
DECISION:
The Court has considered the submissions of both parties, and decides that the Rights Commissioner's Recommendation should be upheld.
It is the view of the Court that the College did not dismiss the employee as a result of an assessment made under the probationary clause of their employment contract. The decision to dismiss instantly was as a result of one incident, and the Court does not believe that that action was warranted in the circumstances as outlined in this case.
The Court notes that under the terms of the Right's Commissioner's Recommendation, the claimant's probationary period has been extended.
The appeal is therefore rejected.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th September, 1999.______________________
CON/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.