FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LIMERICK CITY COUNCIL (REPRESENTED BY LGMSB) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR20372/04/MR.
BACKGROUND:
2. The worker commenced employment with the Council as an environmental inspector in October, 2003. The employment was subject to a 12 month probationary period. On 5th March, 2004, the worker was the subject of a disciplinary hearing at which he declined to be represented by his Union. He met with the Administrative Officer in the Human Resources Department on the 6th of May, 2004, to discuss the disciplinary hearing and confirmed that he would not appeal the verbal warning. (The worker had received written confirmation of the verbal warning on the 5th of May, 2004). Following a further disciplinary matter on the 10th of May, 2004, the worker decided to tender his resignation on the same day. When the Union became aware of events, it advised the worker to reconsider his resignation. He did so and a letter was sent to the Council withdrawing his resignation. Following a meeting between the parties, the Council saw no reason to change its acceptance of the worker's resignation.
The case was referred to a Rights Commissioner and his recommendation was as follows:-
"I therefore recommend that Limerick City Council should agree to allow the worker to return to his position as an Environmental Inspector with the Council with effect from 4th October, 2004, and to regard his period of absence from 7th June, 2004, to 3rd October, 2004, as agreed unpaid leave.
The worker and SIPTU should accept his return to work under these conditions as reasonable in the circumstances.
Both parties should further agree that any issues relating to the worker's work performance which have been outstanding since prior to 7th June, 2004, should be dealt with after his return to work and in accordance with normal procedures."
(The worker was named in the above recommendation).
The Council appealed the recommendation to the Labour Court on the 7th of October, 2004, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 2nd of February, 2005, in Limerick.
COUNCIL'S ARGUMENTS:
3. 1. The Council made every effort to ensure that the worker did not resign without considering the implications of the resignation. This was acknowledged by the Rights Commissioner. It is not clear to the Council what difference Union advice would have made to the worker at the time he submitted his resignation.
2. The decision to utilise the services of a union is solely the prerogative of the individual. The Council cannot be held responsible for the worker's decision in this matter. Both parties are agreed that the employment had terminated by resignation.
UNION'S ARGUMENTS:
4. 1. The worker was upset that it took two months before he received written confirmation of the verbal warning. The letter also reminded him that he was on probation and that the Council was entitled to act within procedures which could lead to the termination of his employment. This was a further cause of upset to the worker.
2. The Council accepted that the Union had not been advised of the decision to issue the worker with a disciplinary warning as is required by agreement between the parties.
3. The worker made a hasty decision in tendering his resignation. However, he felt at the time that because of difficulties in work the Council was intent on dismissing him.
DECISION:
Having considered the submissions of the parties, the Court sees no reason to diverge from the conclusions reached by the Rights Commissioner on the merits of the case.
While the Court concurs with the principal recommendation of the Rights Commissioner, it is of the opinion that the date of re-engagement should be changed to 28th February, 2005.
With this modification, the Recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
16th February, 2005______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.