FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAVID PRATT (REPRESENTED BY MAGUIRE MCCLAFFERTY (SOLICITORS)) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR843/99/JH.
BACKGROUND:
2. The worker concerned commenced employment with O'Shea's public house in 1996. Her employment was terminated in September, 1999. The worker claimed that she had been unfairly dismissed and referred the matter to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's conclusions and recommendation are as follows:
"I am satisfied that David Pratt did dismiss the worker. This decision was based on a number of factors, in particular the conversation with his manager which occurred between the date on which he had the discussion with the worker about hours and wages. His concerns about after hours drinking were also a factor but I do accept that in isolation this incident would not have resulted in termination.
It is my view that compensation is warranted in this case. However on deciding on an amount, I am taking into account the behaviour of the worker who did submit her resignation and who made it quite clear on more than one occasion that she would have difficulty working with the new manager.
Based on the submission at the hearing and for the reasons set out in the conclusions above, I recommend that the worker receive £750 nett compensation in full and final settlement of her claim for unfair dismissal. Payment to be made within fourteen
days of the date of issue of this recommendation unless either side decide to appeal the decision, in which case they should inform the other side."
The worker was named in the recommendation.
The Rights Commissioner's Recommendation was appealed by the employer to the Labour Court on the 30th of March, 2000 under Section 13(9) of the Industrial Relations Act, 1969. He argues that the worker tendered her resignation and it was accepted. The Court heard the appeal on the 3rd of October, 2000, the first date suitable to both parties.
WORKER'S ARGUMENTS:
3. 1. The worker accepts that she tendered her resignation but was requested by the employer to change her mind. She indicated that she wanted to go to college and asked for an increase in pay and for some of her wages to be paid cash in hand. The employer indicated that something could be worked out.
2. Another factor in the worker tendering her resignation was the appointment of a new manager whom she did not want to work with but after speaking to the employer she decided to give it a go.
3. On Tuesday the 7th of September, 2000 the worker visited the premises for the purposes of attending a staff meeting. The employer stated that he had received a Garda report that the premises had been open after hours the previous Saturday night and that the worker who was a key holder was present. Following a visit to the Garda Station it was confirmed to the worker that no such report existed. Later that evening she received a phone call from the employer indicating that he was accepting her resignation that she had tendered the previous week.
EMPLOYER'S ARGUMENTS:
4. 1. The worker resigned from her employment. On the 2nd of September, 1999 she informed the employer of her intention to return to college. She stated that she was in the process of applying for a grant and would not be entitled to a grant if she was employed. She also indicated that she was unhappy about the new manager appointed to run the public house and put this forward as another reason for resigning.
2. The worker was of the view that the only basis on which she would continue to work was if she received cash in hand without deduction of tax. The employer subsequently informed her that this would not be possible and accepted the resignation.
DECISION:
The content of the discussion which the claimant had with the employer on 2nd September, 1999 may have had all the appearances of an offer of resignation, on which the employer could legally rely in treating her employment as having been terminated. However, in investigating a dispute under the Industrial Relations Acts, considerations of legal right are not decisive. Rather, the primary consideration for the Court is the degree to which the approach of the parties is fair and reasonable by accepted standards of good industrial relations practice.
In the circumstances of the present case the Court believes that the claimant could reasonably have expected the employer to revert to her, having undertaken to consider the proposal which she put to him on 2nd September. Equally, given the nature of the proposal, the employer could have rejected it there and then, thus allowing the claimant the clear option of continuing on her existing conditions or leaving the employment. The Court believes that by failing to adopt either course, the employer's approach was less than reasonable.
The Court does not share the Rights Commissioner's conviction that the circumstances in which the claimant's employment came to an end amounted to dismissal. To that extent the employers appeal is allowed and the Rights Commissioner's Recommendation amended. The Court does, however, consider that the claimant was treated unfairly having regard to her length of service and her employment record.
The Court believes that compensation is warranted in this case. In recommending compensation of £750, the Rights Commissioner took full account of the degree to which the claimant should be held responsible for the termination of her employment by submitting her resignation and making it clear on more than one occasion that she would have difficulty working with the new manager.
Taking account of all the circumstances, the Court considers that the monitory award recommended by the Rights Commissioner is reasonable and should be upheld.
The Court so decides.
Signed on behalf of the Labour Court
Kevin Duffy
16th October 2000______________________
FB/SHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.