FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR11383/02/GF
BACKGROUND:
2. The worker commenced temporary employment with Teagasc on 1st April 1980 and was made permanent in 1988. In January 2002 the worker was formally told that management intended to terminate her employment.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's recommendation is as follows:
"The claimant has been employed since 1980 and despite reports regarding the unsatisfactory performance of her duties she was appointed to a permanent position in July, 1988. Given the history of this persons employment over 20 years and the role of management in not alone recruiting her, but conferring a position of permanency on her, I believe the proposed decision to dismiss her from her employment extremely severe. In reply to a number of direct questions during the hearing I was satisfied the claimant felt she had a useful role to play in the organisation. In the circumstances I believe she should be given an opportunity to do so in partnership with her local management, who I suggest should apply themselves to the possibility of providing her with gainful employment which would be in their mutual interest. Therefore, I recommend that the management's proposed decision to dismiss should not be implemented and serious effort be made during 2003 to resolve the matter to everybody's satisfaction".
On the 14th February, 2003, Teagasc appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 8th April, 2003.
MANAGEMENT'S ARGUMENTS:
3.1 The Rights Commissioner's recommendation is totally unacceptable as it takes no account of management efforts in the last 10 years and specifically since 1999 to counsel, provide training and set achievable, albeit reduced targets for the worker. Teagasc has made every reasonable effort to assist the worker to reach a level of performance that would have allowed her to be retained in employment.
2. The Rights Commissioner felt that the claimant had a useful role in the organisation. However, the claimant refused to accept that her performance was not at an acceptable level. Teagasc maintains her performance is below an acceptable level, and would improve if she was given additional time.
3. Management would not be recommending the worker's dismissal, if a reasonable possibility existed that her performance would improve to an acceptable level within the next 12 months. However, it is clear that the considerable assistance she has received in recent years has not resulted in an improved performance. She has consistently failed to achieve the targets set for her despite being set targets which were considerably below those set for other staff in similar positions. She was also provided with special training.
UNION'S ARGUMENTS:
4.1 The worker has been employed with Teagasc for 23 years. She was given a permanent contract after eight years. She works in a difficult area where it is almost impossible to achieve the expected targets. She has vast experience which she wishes to utilise with her employer's cooperation.
2. The Rights Commissioner after questioning the worker was satisfied that she had a role to play in Teagasc. In his recommendation he suggested that Teagasc make a serious effort to resolve this matter and provide her with"gainful employment which would be in their mutual interest".Teagasc have made no effort to comply with the recommendation.
DECISION:
The Court has considered the written and oral information made on behalf of both parties.
The Court notes that the Company initially employed this employee for eight years on a temporary basis, during which they claim there were difficulties, and yet she was made permanent.
The Court accepts the Company has to manage and that if someone is clearly not capable of performing at the level required for the post to which they are employed, then it raises questions about on going employment. However in this particular case for the reasons outlined above and the fact that the employee has been employed for 23 years and would qualify for a pension next year the Court believes that the timing of this decision given the history is unfortunate.
The Court therefore recommends that the Company, given the circumstances of this particular case provide an exit package to facilitate the departure of the employee from the Company, or accept the Rights Commissioner's Recommendation.
In the event of the parties being unable to agree a suitable severance package then the Court will on request made a recommendation on such a package.
Signed on behalf of the Labour Court
Finbarr Flood
14th April, 2003______________________
JB/Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.