FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CWS BOCO IRELAND LIMITED T/A MICRONCLEAN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Recommendation No: r-064974-ir-08-MH
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner's Recommendation No: r-064974-ir-08-MH. The issue in dispute concerns a worker who was employed as a Cleanroom Operator by CWS Boco Ireland Limited, trading as Micronclean, from 24th
April, 2007 until 6th March, 2008.
It is alleged that the worker, having completed her nine-month probation, was, therefore, employed on a permanent contract of employment. She subsequently refused to sign a fixed term contract and was dismissed as a result.
Management contend that because of a serious downturn in business, it had no option but to provide the worker with a fixed-term contract for a two month period while it attempted to secure additional business. It further contended that other staff had accepted fixed-term contracts for the required period of time and were subsequently returned to permanent contracts.
The dispute was referred to a Rights Commissioner for investigation. His Recommendation issued on the 12th November, 2008 and did not find that the worker had been wrongfully dismissed. In his Recommendation the Rights Commissioner held that the worker could have signed the fixed-term contract under protest and sought an alternative source of remedy. He also held that the Company should have written to the worker informing her of the implications of her refusal to sign the fixed-term contract. As the employer did not apply best practice, the worker was awarded one week's pay
(€347 gross) in full and final settlement of the matter.
On the 22nd December, 2008, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 17th June, 2009.
UNION'S ARGUMENTS:
3 1 The worker was employed on a permanent contract and had completed the required probationary period. As a result, she was correct in not signing a fixed-term contract as it would have led to a diminution of her terms and conditions of employment.
2 The employer wrongfully dismissed the worker on the basis of her refusal to sign the fixed-term contract. She was already employed on a permanent basis and should not have been requested to accept the lesser contract.
COMPANY'S ARGUMENTS:
4 1 A management decision was taken to apply fixed-term contracts to certain workers for a two month period. This was necessary on the basis of the difficult trading position occurring at the time.
2 There were other staff members who accepted the fixed-term contracts and have subsequently been restored to permanent contracts. The Claimant in this case would now be on a permanent contract if she had accepted the temporary change of contract.
3 Management had no option but to dismiss the worker on the basis of her refusal to comply with a legitimate management instruction.
DECISION:
The matter before the Court concerns an appeal by the worker of a Rights Commissioner’s Recommendation, which rejected her claim that she had been wrongfully dismissed by her employer. However, as the Rights Commissioner found that the employer did not exercise best practice, the worker was awarded one week’s pay in full and final settlement of her claim.
The Appellant said that she was employed from 24th April 2007 on a permanent contract of employment and therefore refused to sign a temporary contract in March 2008, when requested to do so by her employer, thereby subsequently leading to the termination of her employment.
The worker had previously been employed on a fixed term contract with the employer from October 2003 to October 2005.
The employer submitted that the Appellant’s contract provided for a probationary period of nine months and in March 2008 due to uncertainty in the market place, along with four others was selected on the basis of seniority as it had no alternative but to offer her a two-month fixed term contract. When she refused to sign this fixed-term contract her employment was terminated.
Having considered the submissions of both parties, the Court is satisfied that the appellant’s contract was a permanent contract and her probationary period expired on 24th January 2008. The Court does not accept the Company’s contention that it had no alternative but to terminate her permanent status and place her on a two-month fixed-term contract. Furthermore, the Court is of the view that in the circumstances it was not unreasonable of the appellant to resist her employer’s attempts to have her relinquish her permanent status and to expect her to sign a two-month fixed term contract in lieu. In those circumstances, the Court upholds the appeal and recommends that the Appellant should be reinstated with effect from 6th March 2008.
Therefore, the Court overturns the Rights Commissioner’s Recommendation and upholds the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th July 2009______________________
ahDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.