FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DEAN CROWE THEATRE TRUST - 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 Commissioners Recommendation R-034460-IR-05/JC
BACKGROUND:
2. The Dean Crowe Theatre Trust is a voluntary organisation with responsibility for the management and operation of The Dean Crowe Theatre, Athlone. The Claimant was employed as a temporary manager, on a fixed term contract from February, 2005. His contract was to expire upon the return to work of a manager on maternity leave. In May, 2005, his employment was terminated ahead of it's expiration date.
- The Employer's position was that the Board of Directors were unhappy with the Claimants work performance and the decision was taken to terminate his employment.
The Union's position was that the Claimant was not given prior notice of any disciplinary charges being levelled against him and was issued with a letter terminating his employment the day before it ended.
- The matter was referred to a Rights Commissioner for investigation and Recommendation. Her findings and Recommendation issued on the 13th December, 2005, as follows:
On the basis of the evidence presented I find that at no time prior to the termination of the claimant's employment did the respondent advise him that his work performance was unsatisfactory and that this could lead to disciplinary action up to and including dismissal. I also find that the letter of termination did not outline any reason or explanation for the termination of his contract before the planned date of the return of the Manager from her maternity leave which was scheduled to take place at the beginning of September 2005. I further find the claimant was not given the opportunity to respond to the allegations and/or make any improvements required by the Board in any area related to the performance of his duties.
I find that in the absence of notice to him of deficiencies in his performance and the failure of the respondent to give him an opportunity to respond to any complaints or attempt to resolve the issues that were raised by the respondent at the hearing, the Union did present a strong case in support of its claim for payment of the full amount claimed i.e. an amount equivalent to the planned end of his fixed term contract.
I find that the claimant had a legal entitlement to one weeks pay in lieu of notice and to one weeks pay in lieu of annual leave entitlements accrued at the time of termination. I find that the fixed term contract under which the claimant was employed was not due to expire until September 2005 when the person he was replacing was due to return to work from maternity leave.
In all the circumstances of the case I recommend that the respondent pay the claimant compensation in the sum agreed at the hearing, i.e. €2440 (gross i.e. subject to PAYE & PRSI deductions as appropriate). For the purpose of clarity the figure of €2440 (gross) is in addition to the three weeks paid to the claimant by the respondent at the termination of his employment".- On the 24th January, 2006, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969, on the basis that the Employer has failed to implement the Recommendation in full and therefore, there are still monies due to the Claimant. The Employer rejects the claim and contends that it has fully implemented the Rights Commissioner's Recommendation and all monies have been paid in full.
A Labour Court hearing took place on the 6th June, 2006.
- The matter was referred to a Rights Commissioner for investigation and Recommendation. Her findings and Recommendation issued on the 13th December, 2005, as follows:
3. 1. The Employer has failed to implement the Rights Commissioner's Recommendation and the Union appealed the Recommendation to the Labour Court in order to enforce compliance with the terms of the Recommendation.
EMPLOYER'S ARGUMENTS:
4. 1. The Rights Commissioner's Recommendation has been implemented in full and it has no other liabilities in the matter.
DECISION:
It is noted that agreement was reached between the parties at a Rights Commissioner's hearing on 11th August,2005. The terms of the agreement provided for it's implementation by the following Wednesday. The Employer contends that the agreement was implemented on 6th December, 2005.
In her Recommendation issued on 13th December, 2005, the Rights Commissioner made it clear that she was awarding the Claimant the sum provided for in the agreement concluded in August, 2005. The Rights Commissioner also made it clear that the sum awarded - €2440 - was in addition to the three weeks pay paid to the Claimant on the termination of his employment. It is self evident that this was the Rights Commissioner's understanding of what was agreed between the parties.
The Court has no doubt that the sum agreed between the parties and subsequently recommended for implementation by the Rights Commissioner is exclusive of monies received by the Claimant in respect of the three weeks pay paid on the termination of the employment.
On the basis of this understanding of what was intended the Court affirms the Recommendation of the Rights Commissioner. It is agreed between the parties that on this understanding of the Rights Commissioner's Recommendation a gross sum of €1,357 is due and owing to the Claimant. It is the decision of the Court that this amount be paid forthwith.
Signed on behalf of the Labour Court
Kevin Duffy
14th_June, 2006______________________
JO'CChairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.