FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL VEHICLE DELIVERIES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR2360/00/JH.
BACKGROUND:
2. The worker was employed by the Company as an Accounts Clerk from April, 1999 until October, 2000. The worker was issued with a written warning on the 6th of January, 2000, and alleges that she was constructively dismissed.
The matter was referred to the Rights Commissioner for investigation and recommendation. The Rights Commissioner's recommendation is as follows:-
"On the basis of the submissions made, given the conclusion set out above, I recommend that the Company pay the worker the sum of £800 (€1015.79) as an ex-gratia payment and as a gesture of goodwill towards her."
The worker was named in the recommendation.
On the 13th of February, 2001, the worker appealed the Rights Commissioner's recommendation to the Labour Court under Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place in Wexford on the 30th of April, 2002.
WORKER'S ARGUMENTS:
3. 1. A verbal warning was not issued to the worker prior to the written warning.
2. The disciplinary action taken against the worker was excessive and the Company were aware of the stress caused to the worker.
3. The Company tried to have the worker removed from the bonus scheme.
4. The worker did not receive a contract of employment from the Company until 5 months after her employment had commenced.
5. The delay in removing the written warning from the worker's record, despite the period and conditions specified by the Company having been satisfied, caused the worker considerable stress.
6. The workload the Company expected the worker to complete was far in excess of those employed in the same role as she prior to her being assigned to it.
COMPANY'S ARGUMENTS:
4. 1. The Union did not seek any meetings with the Company, did not lodge an appeal on behalf of the worker and did not make any further representations on her behalf.
2. The Company did advise the worker that the "warning" was no longer active on her file.
3. The worker's bonus was not altered in any way.
4. The worker did not raise the question of bullying, excessive workloads or unreasonable deadlines directly with the Company.
5. It is the Company's contention that the worker's performance in her new role at the time of her resignation, was excellent.
DECISION:
Having carefully considered the oral and written submission of the parties, the Court is of the view that the actions of the appellant regarding the confusion over the bonus payment were not unreasonable. No procedures were in place concerning the payment of bonus in a situation where employees were on sick leave and this lack of procedure lead to the confusion. The Court is satisfied that the appellant acted in good faith and taking account of her excellent work record, the Court is of the view that the Company should have explained the procedures to her and cautioned her for the future. The invoking of the disciplinary procedures was not appropriate in these circumstances.
The failure of the Company to act promptly in relation to the removal of the warning, coupled with the warning itself, caused great distress to the appellant. The Court is of the view that management failed in their duty of care to the employee in this regard and, therefore, award compensation of €2,500 to the appellant. The Court also recommends that a reference indicating her excellent work record should be provided, if requested.
The Court is not satisfied that the appellant has proved her case of constructive dismissal. Accordingly, the Court rejects this part of the claim.
The Rights Commissioner's recommendation is, therefore, amended by the above.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th May, 2002______________________
HMCD/CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.