FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AMERICAN COLLEGE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal of Rights Commissioner's Recommendation IR13460/02/GF.
BACKGROUND:
2. American College provides education and learning facilities to over 700 students, including English language programmes. The College employes 110 staff including 22 English language teachers.
The worker concerned was employed on 2nd of April, 2002 as a part-time teacher in English, on an initial probationary period of six months. From April, 2002 to the time of his dismissal in December, 2002 he was absent on no fewer than twenty days.
The worker was spoken to on several occasions about his absenteeism. On the 11th December, 2002 he attended a disciplinary hearing following which he received a letter from Management informing him of his dismissal. The right of appeal was denied to him.
The claim was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 21st of August, 2003, as follows:
"There may be an argument that the management did not follow procedures to the letter, but on balance, I do not believe the claimant was seriously denied any
rights nor was he at a grave disadvantage. I consider the decision to dismiss the claimant to be fair and I find for the College."
The Union appealed the recommendation to the Labour Court on the16th of September, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 17th of December,2003, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The worker did not receive any formal verbal warning or written warnings prior to his being dismissed.
2. Management failed to adhere to it's own disciplinary procedure. Neither did Management follow the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).
3.The worker was not allowed representation or the right of appeal.
MANAGEMENT'S ARGUMENTS:
4. 1.The worker failed to notify College of any serious medical condition and never provided any medical evidence to verify same.
2. The College management warned the worker consistently about his absenteeism and afforded him every opportunity to improve his attendance rate.
3.The College management were left with no option but to dismiss the worker and did it in accordance with fair procedures.
DECISION:
The Court is satisfied that the process followed by the College in this case fell significantly short of what is required by its own disciplinary procedure and by the Code of Practice on Grievance and Disciplinary Procedures (S.I. No 146 of 2000). Specifically, the claimant was not issued with any written warnings in relation to his absenteeism, there appears not to have been any formal verbal warning and the decision to dismiss him was taken in advance of the disciplinary interview which he attended on 11th December, 2002. Moreover, the claimant was never informed that his probation had been extended or why it was extended.
Where an employee's employment is in jeopardy because of a failure to maintain acceptable standards of performance or behaviour it is imperative that proper procedures are strictly followed. This is a requirement of good industrial relations practice and is also necessary so as to ensure that the employee is left in no doubt as to what is required and of the consequences if those requirements are not met. Furthermore the Court is expressly required by Section 42 of the Industrial Relations Act, 1990 to take the statutory code into account in any case in which it's provisions are relevant.
The Court does, however, believe that the claimant made a significant contribution to the dismissal by the pattern of his absences and his failure to provide adequate medical certification. Nonetheless the failure to observe the proper procedures cannot be overlooked.
Having regard to all the circumstances of this case the Court is satisfied that the claimant's dismissal was procedurally unfair. The Court determines that the claimant should be paid compensation in the amount of €2,000 in full and final settlement of his claim.
The appeal is allowed. The recommendation of the Rights Commissioner is set aside and substituted with this determination.
Signed on behalf of the Labour Court
Kevin Duffy
5th January, 2004______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.