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-067717-Ir-08/Pob
BACKGROUND:
2. The issue before the Court concerns an incident involving the worker which resulted in his dismissal. The Company's position is that the worker breached clocking and cash register procedures while still on his probationary period with the Company. The Union's position is that there is no consistency in the store procedures it is alleged the worker breached. The Company also failed to comply with fair procedures. The matter was referred to the Rights Commissioner for investigation and recommendation. On the 15th January, 2009 the Rights Commissioner issued his recommendation as follow:
"The Company initially suspended the claimant for "allegations of breaches in (Company named) colleagues purchases policy and registrar procedures on May 29th 2008." However the letter of 11th June 2008 dismissed the claimant for "failure of probationary period" and stated "the Company is left with no option but to terminate your probationary period and therefore employment". In fact I believe they need to review their rules for consistency and clarity for the future. For the reasons outlined above, I believe the claimant was not on probation and therefore the termination of employment as a result of failure of probationary period was not open to the company and is not well founded. The company have not proved their case with the clarity required to show that the claimant did anything dishonest or breached a serious company rule. Equally the denial of an appeal hearing is of concern procedurally and overall I find in favour of the claimant and award him €2,500 to be paid within four weeks of today's date and that he should receive a positive written reference with regard to his employment with the company"
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 case concerns an unfair dismissal and breach of industrial relations procedures and natural justice being allowed to the worker in his appeal of the dismissal.
2 It was alleged by the Company that the worker was dismissed during a 6 month probationary period. In the worker's contact of employment a clause relating to a 6 month probation period is present. A second clause states that the company handbook formed part of the contract of employment. The handbook states that staff are hired on a 3 month probation. The Company chose to rely heavily on terms in the Company handbook in defence of its right to terminate the worker's contract, therefore giving the handbook significant credence as part of the contract of employment.
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 The Company reject the allegation that fair procedures were not afforded the worker. The worker was offered a witness to his suspension on full pay pending investigation of the incident. He was afforded the right to answer allegations made against him at an investigation meeting and had Union representation. The Company also provided an appeal hearing at the Union's request.
3 The worker breached Company procedures. These were not minor breaches in the context of the environment in which he worked.
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, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.