FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CENTRAL REMEDIAL CLINIC (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal of Rights Commissioner's Recommendation IR12257/02/LM.
BACKGROUND:
2. The worker commenced employment as a trainer with the Central Remedial Clinic on the 17th September, 2001 and resigned on the 16th January, 2003. Management state that the worker was involved in providing training and activation for young adults with physical disabilities.
The worker claims that management failed to comply with its internal policies on discipline and grievance procedures in relation to complaints made by him. He also complained that his probationary period was extended without any consultation with him.
Management rejected the worker's claim.
The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 25th June, 2003 the Rights Commissioner issued her recommendation as follows:-
Conclusion
"Having considered the oral and written evidence presented at the hearing I am satisfied that the claimant was frustrated by the lack of compliance by management with the grievance procedure.
I am further satisfied that management extended the claimant's probation a few weeks before the expiry of the twelve month period without due cause or fair procedure."
Recommendation:
"Having regard to the foregoing I award the claimant €1000 compensation to be paid by the Central Remedial Clinic in settlement of this claim."
On the 1st August, 2003, the Central Remedial Clinic appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 13th November, 2003.
ORGANISATION'S ARGUMENTS:
3. 1. The worker's probation was extended due to his failure to develop and design written modules for the programme and to attend to the various responsibilities attaching to his position including safety training.
2. Management reject the claim that it impeded the worker from using its procedures to advance his complaints.
3. The worker should have used the grievance procedure to air his complaints and he was advised of this fact. However, he refused to accept that the grievance procedure would serve his purpose.
4. The clinic's procedures are not out of line with Statutory Instrument No.146 of 2000relating togrievance and disciplinary procedures.
WORKER'S ARGUMENTS:
4. 1. Management failed to comply with their stated policies on discipline and grievance with regards to complaints made to them by the worker.
2. Performance reviews were to be carried out at intervals of three months, six months and twelve months but these reviews never took place.
3.The worker was frustrated by the lack of compliance by management with the grievance procedure.
4. Management extended the worker's probation without any consultation with the worker or without due cause or fair procedure.
DECISION:
The Court notes that the employer did not attend the hearing before the Rights Commissioner, for the reasons stated to the Court. In consequence the Rights Commissioner was deprived of the opportunity to hear both sides of the case in reaching her conclusions. The employer must accept responsibility for what occurred including the inconvenience and expense incurred by the claimant in attending at the appeal.
Having considered the submissions of the parties the Court is of the view that the claimant had some cause of complaint in relation to the basis upon which his probation was extended. It appears that the matters relating to the claimant's performance were taken into account in deciding to extend his probation. The Court is not fully satisfied that the claimant was provided with an adequate opportunity to address those issues in his defence before management made its decision. On this basis alone the Court considers it appropriate to uphold the recommendation of the Rights Commissioner. However, having regard to all the circumstances the Court does not consider it appropriate to reduce the amount of compensation recommended by the Rights Commissioner.
To that extent the recommendation of the Rights Commissioner is amended and the appeal allowed.
Signed on behalf of the Labour Court
Kevin Duffy
25th November, 2003______________________
lw/lwDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.