FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SUPERQUINN - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Of A Rights Commissioner's Recommendation R-067689-Ir/Tb
BACKGROUND:
2. The issue before the Court concerns an incident involving the worker which resulted in her dismissal. The Company's position is that the worker breached clocking and cash register procedures while still on her probationary period with the Company. The Union's position is that the Company has not proven that its member failed her probationary period by acting dishonestly or breaching serious company rules. The Company also failed to comply with fair procedures. The matter was referred to the Rights Commissioner for investigation and recommendation. On the 16th January, 2009 the Rights Commissioner issued his recommendation as follow:
"I understand why the Company would view the incident in a serious light and also the necessity to ensure that till and purchase procedures are scrupulously observed. However on the basis of the evidence and on the discussions at the hearing it appears to me that the incident could easily have arisen out of confusion and misunderstanding as out of any misguided action. I am giving the benefit of the doubt to the claimant. I believe in the circumstances that the correct form of redress is compensation and I recommend that the company pay the claimant €2,500 in compensation."
On the 23rd January, 2009 the Company appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 26th March, 2009.
UNION'S ARGUMENTS:
3. 1 The letter of dismissal recieved by the worker states she failed her probation period when in fact she was finished her probation period after 13 weeks as per company handbook.
2 It is clear to the Union that an appeal was only heard by the Company when it was informed of the Rights Commissioner's hearing in order to be seen to follow procedures.
3 The Company have not proven their case with the clarity required to show our member did anything dishonest or breached a serious Company rule.
COMPANY'S ARGUMENTS:
4. 1 The Union has argued that the worker was not in probation as the Company handbook only specifies 3 months as a probationary period. However, this incident relates to a newly opened store and in that situation every employee is given a 6 month probation period. This is clearly set out in the contract of employment that was signed by the worker.
2 No evidence has been produced to show that the Company had confirmed the worker in a permanent role. The Company has the right to use the probation period of time to determine suitability of an individual for a permanent role within the Company.
3 The Company does not normally hear appeals from colleagues who have not successfully passed their probationary period. However, the Company did agree to set aside the normal practice and hear an appeal.
DECISION:
The Court has fully considered all of the submissions and evidence put before it in this case. While unquestionably, policy breaches took place in this instance, in the view of the Court, the policies and procedures adopted by the Company in this instance, as well as the failure to immediately grant an appeal, fell considerably short of best practice. The Court is also of the view that the sanction imposed was disproportionate.
In all the circumstances, the Court dismisses the appeal and upholds the Recommendation of the Rights Commissioner. The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
9th April, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.