FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SOUTH WESTERN AREA HEALTH BOARD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR18354/04.
BACKGROUND:
2. The case before the Court concerns a worker who was employed as a temporary Clerical Officer since 5th January, 2001. The worker in question was dismissed on the grounds of poor work performance on 11th January, 2004, following the issuing of a verbal warning and two written warnings.
The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 5th July, 2004, as follows:-
"While I accept that SWAHB did not follow its own procedures in relation to the Verbal Warning that was issued to the worker on 31st July, 2002, this warning was not appealed by her at the time and she subsequently accepted a Written Warning on 28th February, 2003.
I find that the worker was fairly dismissed and therefore find against herclaim for reinstatement".
The worker was named in the Rights Commissioner's Recommendation. On the 3rd August 2004 the worker (represented by SIPTU) 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 4th November, 2004.
The employer rejects the unions claim for re-instatement on the basis that no appeal was lodged against the verbal warning or the first written warning.
UNION'S ARGUMENTS:
3. 1. There had been no indication that the performance of the worker was sub standard for the first 18 months of employment. Previous to this there had been 19 years of incident free clerical service. This was acknowledged by the employer by placing the worker on the maximum of the payscale.
2. The employer became very meticulous with regard to the work performance of the worker after allegations were made by her of bullying through isolation. The employers actions towards her resembled an information gathering and procedural exercise which seemed motivated towards the objective of dismissal.
3. The worker had sought relocation on the basis that her health had suffered as a result. The employer failed to do this, despite receiving advice from their own doctor on the issue. If relocation had been considered it may have proved a solution to the problems experienced by the worker.
COMPANY'S ARGUMENTS:
4. 1. The worker had been given a verbal warning but had made no appeal. There was also no appeal lodged against a subsequent written warning.
2. The Board reserves the right to determine what is an acceptable level of performance, a standard which was not achieved by the worker.
3. The Board had made every effort through the provision of training to increase the productivity of the worker, but to no avail. The worker did not return to training after the first day.
DECISION:
Having considered the views of the parties expressed in their oral and written submissions, the Court concurs with the findings and recommendation of the Rights Commissioner. Accordingly, the Court upholds the Rights Commissioner's recommendation and dismisses the worker's appeal.
The Court recommends that the worker should be supplied with a reference without delay.
Signed on behalf of the Labour Court
Caroline Jenkinson
24th November, 2004______________________
MG./AH.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.