FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUNNES STORES - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Alleged unfair dismissal
BACKGROUND:
2. The worker alleges that he was unfairly dismissed. He claims that on the 11th February, 2002 he was informed by management that he needed to improve his timekeeping. He was given six weeks to achieve this. However, on the 15th February, 2002 he was informed by management that his contract of employment had been terminated.
The company indicated by letter dated the 8th July, 2002 that it would not be attending the Labour Court hearing. It stated, however, that the worker's contract of employment was terminated because of poor performance and poor timekeeping.
The worker referred the dispute to the Labour Court on the 6th June, 2002 under Section 20 (1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. The Court investigated the dispute on the 20th September, 2002.
WORKER'S ARGUMENTS:
3. 1 The worker alleges that he was unfairly dismissed. He was given 6 weeks in which to improve his time keeping.
2. The worker informed his employers that he had to see his barrister in relation to a pending court case. He claims that this is the reason his employment was terminated.
3. The worker is seeking compensation for his unfair dismissal.
COMPANY'S ARGUMENTS:
4. 1. The worker's contract was terminated because of poor performance and poor timekeeping.
2. The worker was still on probation when his contract was terminated.
3. The worker was spoken to on a number of occasions in relation to the use of bad language on the shop floor and also to his failure to clock out for breaks.
4. The worker's performance during his probationary period was not up to the required standard. His contract was terminated and he was paid a week's wages in lieu.
RECOMMENDATION:
The company failed to attend the hearing of this case but did communicate with the Court by letter in relation to the dispute.
The worker told the Court that he had been warned in relation to his time keeping on 11th February 2002 and he had been given 6 weeks in which to improve. On the following day he changed his lunch hour by agreement with his manager so as to attend a meeting with his legal advisor in relation to an impending Court appearance. He was delayed at this meeting and explained the delay to his manager who appeared to accept the explanation.
Two days later the worker was called to a meeting with the manager who enquired as to the subject matter of the impending Court case. The worker informed the manager that it was a criminal matter. The manager told the worker that in light of this she did not think that the company would wish to retain him in employment. On the following day the worker was dismissed.
In its letter to the Court, the company stated that the worker was dismissed for consistent poor time keeping. They further indicated that the worker had been met with on three occasions to discuss incidents relating to his employment. In addition to his time keeping, these meetings concerned the use of bad language by the worker on the shop floor and his failure to clock out for breaks (resulting in over payments) and absences from work.
When invited to comment on the company’s assertions the worker repeated that in relation to his time keeping he had been given six weeks from 11th February in which to improve. In relation to the other matters, he said that the incident concerning the use of bad language had arisen in an altercation with another employee and had not been regarded as serious by management at the time. The worker denied that he had received overpayments as a result of not clocking out at breaks or that any such allegation had been raised with him.
The Court regards it as regrettable that the company did not attend the hearing, particularly in view of the substantial difference between the worker's recollection of material events and that recited by the company in its letter to the Court. On the uncontested evidence of the worker, the Court accepts that it was only when the company became aware that he was charged with a criminal offence that the worker's continued employment was brought into question. On balance, and in the absence of rebutting evidence by the company, the Court accepts that this was the dominant reason for the dismissal. At that point the worker had not been convicted and the nature of the charge did not impinge on his employment.
The Court notes that the worker would not have been available for employment from the end of April 2002. In the circumstances the Court recommends that he be paid two months wages in full and final settlement of his claim.
Signed on behalf of the Labour Court
Kevin Duffy
2nd October, 2002______________________
LW/LWDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Larry Wisely, Court Secretary.