FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : Q PARK (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Recommendation R-063106-Ir-08/JW.
BACKGROUND:
2. It is the Union's claim that its member was wrongfully dismissed from the Company as there was no substantive grounds for dismissal and no fair procedures were followed in executing the dismissal. The worker commenced employment with the Company in September, 2007. In December, 2007 a customer made a compliant against the worker to the Company for verbally abusing her and her daughter. The Company's position is that following investigation, including an eye witness statement, the worker's employment was terminated in January, 2008.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 29th September, 2008 the Rights Commissioner issued his Recommendation as follows:
"The Company has no formal procedure in place to process this incident in a fair and reasonable manner. I understand that with the appointment of a HR Manager that correct procedures are now in place. It is alleged by the Company that this incident was witnessed by a colleague of the claimant and that he filled out an incident report form. (The Witness named) was not at the hearing to give evidence and it emerged that he had signed the report form which was filled out by his supervisor. (The Supervisor named) was the person who dismissed the claimant by telephone call on 3rd January, 2008.
I find in favour of the claimant as the Company did not have correct procedures in place to deal with this incident in a fair and reasonable manner.
I recommend that the employer pay the claimant the sum of €7,500 in compensation for failing to apply the correct procedure to ensure that the rules of natural justice were observed in this case.
The sum should be paid within 6 weeks of this recommendation."
The Union's position is that they accepted the terms of the recommendation but that they did not receive the amount awarded to their member by the Rights Commissioner.
On 4th November, 2008 the Union 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 7th January, 2009.
UNION'S ARGUMENTS:
2. 1. The Company offered €1,000 in settlement of the €7,500 awarded by the Rights Commissioner. This is not withstanding the fact that the Company defended their position at the Rights Commissioner hearing.
2. It appears to the Union that the Company is not willing to appeal the Rights Commissioner's Recommendation nor are they willing to apply the terms of the recommendation.
3.Despite the fact that the Union indicated acceptance of the terms of the Rights Commissioner's Recommendation, it is requesting that the Court increase the compensation figure to a figure closer to that sought in the Union's original submission to the Rights Commissioner.
COMPANY'S ARGUMENTS:
3. 1. The worker's abusive conduct and behaviour towards customers of the Company was completely unacceptable and constituted gross misconduct. The incident was witnessed by a colleague and documented in a written statement.
2. The Company acknowledged that to dismiss any employee by phone call is not acceptable, the facts of the case are not in dispute.
3.The worker was appropriately given the opportunity to appeal the decision to dismiss him from the Company. It is the Company's position that the worker's dismissal was fair and reasonable taking into account all circumstances.
DECISION:
The Union appealed the Rights Commissioner's Recommendation which found in favour of the worker and recommended that the employer should pay the Claimant the sum of €7,500 in compensation for failing to comply with correct disciplinary procedures. The Union submitted its appeal on the basis that the award fell short of its member's expectations.
The Court notes that the Company did not appeal the Rights Commissioner's Recommendation.
Having considered the written and oral submissions of both sides, the Court sees no reason to amend the Rights Commissioner's Recommendation and, accordingly, upholds the Recommendation . Therefore, the employer should pay the sum of €7,500 in full and final settlement of all claims against it.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th February, 2009.______________________
DN.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.