FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MATT KELLY T/A THE MIDWAY PARK HOTEL - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR13332/03/LM.
BACKGROUND:
2. The worker concerned commenced employment with the Hotel on the 17th of October, 2002, as a Barman. After two weeks of employment he was promoted to Bar Manager. He claims he was unfairly dismissed on the 19th of January, 2003, as he was told his position was filled. Management states that he was not dismissed but left his employment of his own free will.
The issue was referred to a Rights Commissioner for investigation and recommendation. Her recommendation issued on the 5th June, 2003 as follows:
"For the reasons set out in the foregoing I award the claimant €3000 in respect of the dismissal. €480 in respect of minimum notice and €320 in respect of holidays, this figure of €320 is 4 days pay at €80 per day based on a six day week. The employer to pay the claimant a total of €3800 in settlement of his claim under the Industrial Relations Acts 1969-1990".
The employer appealed the recommendation to the Labour Court on the 13th June, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 14th of October, 2003, the earliest date suitable to the parties.
EMPLOYERS ARGUMENTS:
3. 1. It was made clear to the worker concerned that before resuming work after his period of illness he would have to meet with Management to discuss issues relating to him which had arisen during his absence.
2. The worker concerned was not dismissed but left his employment of his own free will.
WORKER'S ARGUMENTS:
1. The worker concerned was not informed of any issues relating to him which Management states had arisen during his absence.
2. The worker concerned did not leave his employment but was unfairly dismissed.
DECISION:
Written and oral submissions were presented by both parties and the Court heard evidence under oath. Conflicting evidence was submitted to the Court on the facts of the case.
Having investigated the case the Court is satisfied that following a period of certified illness which expired on 10th January, 2003, and due to authorised attendance at a funeral, he was not due to return until 14th January. Following that date the Court was presented with conflicting evidence as to (a) whether he reported for work, or (b) whether he was informed that no work was available for him. However, the Court is clear that certain assumptions were made by both sides concerning his employment status, which resulted in an altercation between the worker and the owner.
On balance, the Court is satisfied that the worker's employment was terminated by the respondent. This is due to the fact that he was not included on the rota after 17th January, plus the fact that the respondent concluded that his employment had been
terminated by virtue of his altercation with the owner.
Such a termination of employment was not in accordance with normal disciplinary procedures and did not comply with the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000, consequently, the Court recommends that he should be paid compensation in full and final settlement of all claims before the Court. Taking all factors into account, including the worker's contribution to the dismissal, the Court measures this compensation at €1800.
The Rights Commissioner's recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th November, 2003______________________
GB/BRDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Gerardine Buckley, Court Secretary.