FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MUSGRAVE SUPERVALUE CENTRE LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioners recommendation IR 14702/03/LM.
BACKGROUND:
2. The dispute concerns a worker who commenced employment in October, 1998 as a driver. He commenced sick leave on the 15th April, 2002 and was in receipt of benefits under the Company's sick pay scheme. Medical certificates were submitted by the claimant. The Union claims that the worker resigned from the employment following a meeting with Management on the 4th September, 2002. The Company claims that, following the initiation of the disciplinary process, the worker was dismissed on the 20th September, 2002. The dispute was referred to a Rights Commissioner for investigation. On the 16th October, 2003 the Rights Commissioner issued her recommendation as follows:
"The Company position is upheld. The claim on behalf of the claimant fails."
On the 4th November, 2003 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 16th January, 2004.
UNION'S ARGUMENTS:
3. 1. The claimant clearly stated to Management on two occasions (on or around 25th August, and 4th September, 2002) that he intended resigning from the employment. He reiterated this to Management at an appeal hearing in December, 2002.
2. Management acted in a draconian manner in proceeding with a disciplinary process after the 4th September, when the claimant offered his resignation.
3. The claimant engaged with Management initially on the 4th September in ignorance of the possible consequences. On the 11th September he attempted to indicate his dispute with the disciplinary process to Management, through a local shop steward.
4. The Company states incorrectly and in contradiction of its own records that Management was not clear of the claimant's intentions.
5. The Company should have accepted the claimant's stated resignation on the 4th September. Proceeding with a disciplinary process after that date amounted to an insistence that the claimant remain in the employment. It was open to Management to dismiss the claimant on the 4th September but it would have had to do so without due process.
COMPANY'S ARGUMENTS:
4. 1. The claimant was dismissed from the employment for gross misconduct in that he fraudulently claimed sick pay from the Company while he was gainfully employed elsewhere. At a disciplinary meetings of 4th and 11th September, 2002 this allegation was put to the claimant and his responses were unsatisfactory and evasive.
2. The Union has argued that the claimant resigned of his own free will and volition in August 2002. There is no record of this resignation on Company files, and while there is some confusion as to when it was sent, the Company accepts the Union's contention that it was sent several months after his termination. This does not alter the fact that the claimant was in receipt of remuneration under the Company's sick pay scheme until the 20th September, when his employment was terminated.
3. The Company afforded the claimant his rights under natural justice and due process. The Company's decision to terminate the claimant's employment was fair and reasonable in all the circumstances.
DECISION:
The Court has considered the submissions of both sides. The Court accepts that it was the claimant's intention to resign from the company at the end of August, 2002 as communicated to his manager at that time.
However, his failure to effect his resignation in accordance with the company's procedures led the company to treat him as an employee and he was dismissed in accordance with their procedures on 20th September, 2002.
The Court is aided in this view by the fact that he was paid until 20th September, 2002 and he availed of the company's disciplinary procedures to appeal the dismissal.
Accordingly, the Court upholds the Rights Commissioner's recommendation and dismisses the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd January, 2004______________________
TODDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.