FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : APX SCAFFOLDING - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Dismissal
BACKGROUND:
2. This case concerns a dispute between the worker (represented by SIPTU) and APX Scaffolding in relation to alleged unfair dismissal. The Union's claim is that the worker was employed by the Company as a Contracts Manager in the Dublin area.
It is further claimed that he was also responsible for expanding the business, which was allegedly impossible as the Company was non-compliant with the provisions of the Registered Employment Agreement (REA) for the Construction Industry - Pensions Assurance and Sick Pay and could not therefore supply a certificate of compliance prior to being awarded new contracts. The Company has been placed in Liquidation and did not attend the hearing although a representative of the liquidator did attend. The Company had previously sent a submission to the Court on the issues in dispute which was considered by the Court.
On the the 21st December, 2007, the Union referred the matter to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and accepted that the worker would be bound by the Court's Recommendation. A Labour Court hearing took place on 26th March, 2008.
At the hearing, the Union confirmed that the dispute had initially been referred to a Rights Commissioner but had been dismissed as neither the Union nor the worker had attended the hearing. The Union accepted it had been an error on its part that it had not attended and was appealing the Rights Commissioner's Decision. It accepted it had used the incorrect referral form to the Court in relation to the appeal.
UNION'S ARGUMENTS:
3 1 The worker was unable to secure new contracts on the basis that the employer was not compliant with theRegistered Employment Agreement (REA) for the Construction Industry - Pensions Assurance and Sick Pay and was unable to provide a certificate of compliance prior to obtaining new contracts.
2 The worker in question was dismissed, without being given any reasons whatsoever. At all times during his employment he attempted to promote the business and obtain additional contracts. He was dismissed while certified unfit to work on the basis of an injury and was told by the Company at the time that his management technique "did not fit in" with the Company.
RECOMMENDATION:
Since this matter was referred to the Court the Company has been placed in liquidation and a Liquidator has been appointed. A representative of the Liquidator attended the Court hearing as a matter of courtesy but did not actively participated in the hearing. The Court was told that the Liquidator had no knowledge of the matters giving rise to the hearing before the Court. A submission had been prepared and delivered by the Company before the appointment of the Liquidator setting out its position on the matters in dispute. The Court took this submission into account.
This case was referred to the Court by the Union using the form appropriate for a referral under Section 20(1) of the Industrial Relations Act 1969.
The dispute had been referred to a Rights Commissioner under Section 13(2) of that Act and the Rights Commissioner issued a Recommendation. Section 13(10) of the Act of 1969 precludes the Court for investigating a dispute which has been the subject of a Recommendation by a Rights Commissioner other than by way of an appeal from that Recommendation.
The Court was told that the Union’s intention was to appeal the recommendation of the Rights Commissioner but the wrong form had been used. The representative of the Liquidator accepted that the matter should be dealt with as an appeal from the Recommendation issued by the Rights Commissioner.
The Court accepts that the Union’s intention at all times was to refer the matter to the Court by way of an appeal against the recommendation of the Rights Commissioner and that the wrong form was used for that purpose. The Court notes that this is accepted by the representative of the Liquidator who had no objection to the Court proceeding to hear the matter on that basis. The Court agreed to proceed accordingly.
It is noted that the Union failed to attend the hearing before the Rights Commissioner for reasons which were explained to the Court. In these circumstances the Rights Commissioner had dismissed the claim for want of prosecution.
Having heard the submissions of the Union and having taken full account of the written submission received on behalf of the Company the Court is satisfied that the Claimant was unfairly dismissed.
In the circumstances the Court believes that the Claimant should be paid compensation in the amount of €5,000 in full and final settlement of his claim against the Company.
The Rights Commissioner’s Recommendation is varied accordingly
Signed on behalf of the Labour Court
Kevin Duffy
16th April 2008______________________
AHChairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.