FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : PORTROE STEVEDORES LIMITED - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-042442-Ir-06/JT.
BACKGROUND:
2. The Company is an independent stevedore operation in Dublin Port. The worker was previously employed by a security company as a security guard on the main gate at the docks at Dublin Port .
The Union's case is that the worker was approached by a representative of the Company asking her if she was interested in a job. She was interviewed for the job on the 9th of December, 2004, and was offered the post on the 4th of January, 2005, on a 6-month probationary period. Her work was mainly dealing with containerised cargo handled by the Company. The worker claims that she was told that her rate of pay would be €9.50 per hour, that overtime would be an option and that her hours of work would be 8.00a.m. to 5.00 p.m. However, when she started working she was informed that her hours would be 7.00 a.m. to 5.45 p.m. thus making overtime compulsory.
On the 30th of March, 2005, the worker was diagnosed by her doctor as having an asthmatic attack, something she suffered from on occasions and was off work for two weeks. When she returned to work on the 11th of April, 2005, she saw the General Manager and someone from the H.R. Department, both of whom told her she should have mentioned her asthma problem and that she would not have been hired if they had known about it. She was then handed a letter of termination of employment.
The Company's case is that the worker was not dismissed because of her asthma problem. Instead she was let go because she could not do the work that she was hired for.
The case was referred to a Rights Commissioner and his Recommendation was as follows:-
"The Respondent cited part of the Company/Union agreement in relation to disciplinary procedures and stated it is intended that breaches of discipline will be dealt with locally and quickly. I do not accept that the dismissal of the claimant was based on a breach of discipline. It was based more on performance in relation to the job for which she was employed. It was clear during the hearing that the respondent's Company is a small operation and requires accuracy to deal with the quick turnover of containerised traffic. I note that the claimant had worked in the security area of checking trucks in and out of the port and would have been known to the respondent's Company. Therefore, she would have more than an average knowledge of the requirement of the respondent's Company.
What is clear, regardless of the method of appointment of the claimant, that both parties understood there was a probationary period involved on the appointment of the claimant. It is clear that at a certain point in time the respondent had concerns in relation to the performance of the claimant and therefore, decided to terminate the employment in the six months of the probationary period. I, therefore, find that the termination of employment was fair under these circumstances".
The Union appealed the Recommendation to the Labour Court on the 18th of October, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 4th of April, 2007.
UNION'S ARGUMENTS:
3. 1. The worker's interview for the job and her appointment were very informal. She was given no written contract of employment.
2. The duties the worker was asked to do were more complex than she had been doing in her previous job, but she was not told that there was a problem until she was dismissed. The worker believed that she was getting to grips with the job and was shocked when told of her dismissal.
3. The Company did not follow procedures when dismissing the worker. It was handled in the same haphazard manner as her appointment.
COMPANY'S ARGUMENTS:
4. 1. From an early stage the worker had to be spoken to about her performance of her duties every two or three days. It was explained to her about the critical nature of the work and why accuracy was essential. After six weeks she was told that if her performance did not improve her employment would be terminated.
2. There was no improvement in the worker's performance which resulted in numerous difficulties for the Company and its customers. It was decided to dismiss the worker as a result. She was still on probation.
DECISION:
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that the dismissal of the appellant was unfair, as the Company’s procedures were not carried out in accordance with Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000 and did not convey management’s view that the appellant’s employment was in jeopardy.
Therefore, the Union’s appeal is allowed; the Court overturns the Rights Commissioner’s Recommendation and recommends that the appellant should be compensated by the payment of €5,000 in full and final settlement of the claim.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th April, 2007______________________
CON/MBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.