FULL RECOMMENDATION
SECTION 17(1), PROTECTION OF EMPLOYEES (PART-TIME WORK) ACT, 2001 PARTIES : BEACON AUTOMOTIVE LTD - AND - A WORKER (REPRESENTED BY JOHN BARRY) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal Against Rights Commissioner's Decision R-043982-Pt-06/Jt
BACKGROUND:
2. The Respondent commenced employment with a car franchise in August 2005 as a part-time Receptionist/Administrator. In March 2006 the franchise was bought by the Appellant. The Respondent continued her employment with the new owners and agreed to change her work pattern from working Wednesday to Tuesday with the next five working days off to working Monday to Friday with the next five working days off. In June 2006 the Respondent took one week annual leave which meant the company was without a Receptionist for three continuous weeks. In order to cover this absence the Appellant recruited a college student. It was the intention of the student to return to college after the summer break. The Appellant believed this situation provided a temporary solution to the need for continuity of work in the Reception position. On the Respondent's return to work she found somebody sitting at her desk, which the Appellant concedes may have come as a surprise. The Appellant planned to reassign administration duties so as to allow the Respondent maintain her part-time status and allow continuity in the Reception position. The Respondent met with management late on the day of her return to discuss the situation. The Respondent claimed that at that meeting she was dismissed. The Appellant claims that she was asked to think about the reorganisation but resigned the following day.
The matter was referred to the Rights Commissioner for investigation and Recommendation. The worker claimed that she had been penalised in breach of Section 15 of the Protection of Employees (Part-Time Workers) Act 2001 (The Act). On the 3rd November, 2006 the Rights Commissioner issued his Recommendation as follows:
"Having considered the evidence before me I find the claimant's case well founded and that the respondent was in breach of the Protection of Employees (Part-Time Work) Act, 2001"
On the 23rd January, 2007 the company appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 17(1) of the Act. A Labour Court hearing took place on Thursday 31st May, 2007.
RESPONDENT'S ARGUMENTS:
3. 1 When the Respondent returned from annual leave she had no reason to believe that her employment was in jeopardy until she reported to work, where she was treated in a disgraceful manner. The Respondent discovered that her emails had been deleted, her desktop background changed and it was not until 4.30pm that afternoon that the full situation was explained to her.
2 When advising the Respondent as to the reason for her dismissal management stated that the company was not interested in part-time workers. The Respondent was told she was surplus to requirement. The company's actions were in breach of the Act.
APPELLANT'S ARGUMENTS:
4 1 The Appellant is aware that there exists an onus on the employer not to treat any employee so badly that they are in effect, forced to leave. The company maintains that there was no threat to the Respondent's employment. However, the Respondent appeared unwilling to discuss the available options.
2 The Appellant did nothing to indicate anything other than a willingness to continue the worker's employment on a part-time basis. Therefore, the Respondent should not have left her employment and therefore, the Appellant maintains that it is unreasonable to seek compensation for walking out on her job which was still available with all the existing terms and conditions being honoured by the company.
DETERMINATION:
The Court having listened carefully to the evidence is of the view that the Respondent's version of events is correct. The Court takes the view that the Appellant decided that when the Respondent took holidays, because of her part-time status the period of absence was too great, and the employer decided to replace her with a full-time employee. The Court is sustained in this view by the fact that in taking over the company two months previously, the Appellant had asked the Respondent to work full time and then changed her work day pattern to Monday to Friday. The Court further accepts the Respondent's evidence that at the meeting in the Managing Director's office on the day she returned to work, she was dismissed because the Company wished to replace her with a full-time employer.
Section 15 (1) of the Act states, inter alia, that an employer shall not penalise an employee.....
(c) for refusing to accede to a request by the employer to transfer from performing..........
(ii) part-time work to performing full-time work.
Section 15 (2) states for the purposes of this section an employee is penalised if he or she
(a) is dismissed, suffers any unfavourable change in his or her conditions of employment or any unfair treatment............or
(i) is the subject of any other actions prejudicial to his or her employment.
The Court takes the view that the Appellant had decided to dismiss that the Respondent when she refused to switch from part-time to full-time work. Its actions on her return to work from holiday were in breach of Section 15 (2)(a), (i) in allowing her to return to work to find someone else in her place, (ii) in allowing her to remain at work all day without explaining the position to her and (iii) dismissing her that evening.
The Court upholds the decision of the Rights Commissioner and awards the Respondent €13000 as compensation for the Appellants breaches of the Protection of Employees (Part-Time Work) Act 2001
Signed on behalf of the Labour Court
Raymond McGee
17th July, 2007______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.