FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : PORTMARNOCK SPORTS AND LEISURE CLUB - AND - A WORKER (REPRESENTED BY CANNING LANDY& CO) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Alleged Unfair Dismissal
BACKGROUND:
2. The case before the Court concerns a dispute betwen the Portmarnock Sports and Leisure Club (PSLC) and a former employee who alleges unfair dismissal. The claimant was employed by the club as General Manager commencing his employment in February 2004. It is the claimant's position that he carried out all duties expected of him during his employment at the club and at no time was his performance questioned by his employers. Financial discrepencies were raised by the Claimant who had discovered innacuracies in other financial areas within the Club.
The PSLC Representative claimed that the claimants performance in several areas was unsatisfactory and that he had failed in his role to provide accurate management accounts and other financial information to the Board of Management.
A six-month probationary meeting was held in October 2004 where matters of underperformance were outlined to the claimant following a report by the Clubs auditors. The Management Committee subsequently decided to dismiss the claimant with effect from2nd November 2004.
On the 28th October 2005, the Claimant referred the matter to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court Hearing took place on the 20th January 2006.
The worker agreed to the bound by the Court's Recommendation.
WORKER'S ARGUMENTS:
3. 1. The claimant was denied fair procedure with regard to the accusations made against him. He was not afforded the right of representation at what transpired to be a disciplinary meeting nor was he given the chance to respond to the allegations.
2. During the probationary period, there was no indication that there were any difficulties with the claimant's performance.
3. The PSLC are in breach of the Unfair Dismissals Acts, 1977-2001 in that no Contract of Employment was received specifying the procedures that would be followed in the event of a dismissal. It is also in breach of the Terms of Employment (Information) Act, 1994 in that no letter of appointment was issued to the Claimant.
COMPANY'S ARGUMENTS:
4. 1. The Claimant was dismissed on the grounds of gross misconduct. He had misled the Management Committee at interview as to his capabilites and had also sanctioned payments and authorised direct debits without the authority to do so. In light of the financial difficulties identified and other issues of misconduct, the Committee decided not to renew the contract of employment.
2. The Claimant provided incorrect financial information to the Management Committee. The figures produced had indicated a substantial profit in the Management Accounts when in actual fact a significant loss had been recorded.
3. The Claimant also authorised the payment of bonuses without seeking approval from the Management Committee.
RECOMMENDATION:
The dispute concerns the alleged unfair dismissal of the General Manager by the Club. The claimant's case is that he was denied fair procedures in the investigation of the complaints against him and that, in consequence, the resulting dismissal was unfair. He was given no advance notice of his impending dismissal, no opportunity to be represented; no details of the allegations made against him and no opportunity to respond to those allegations. He denied that there were any grounds for his dismissal.
Management held the position that difficulties with the claimant’s performance came to light towards the end of his probationary period. A meeting was held on 18th October 2004 to discuss his performance, at which the claimant was accompanied by a professional in employment related matters. Details of these difficulties were outlined and following a meeting of the Management Committee on 1st November 2004, when a report by the Club’s auditors was considered, a decision was taken to dismiss him with immediate effect. The Club considered that it had reasonable grounds to terminate his employment without notice in accordance with its disciplinary procedures on “gross misconduct”.
It is clear to the Court that the decision to dismiss the claimant was taken before he was afforded an opportunity to respond to the allegations made against him. He was entitled to a fair opportunity to make representation on his own behalf. This constituted an infringement of fair procedures and was contrary to the provisions of the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).
In all the circumstances the Court finds that the claimant was unfairly dismissed. However, the Court is satisfied that while the Club did not adequately follow procedures in this case, nonetheless he contributed to his dismissal by his own underperformance in the Club and this conclusion must be taken into account in awarding any compensation to him.
In all of the circumstances, the Court recommends that the claimant be paid compensation in the amount of €5,000 in full and final settlement of all claims before the Court.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th February 2006______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.