FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NORTHSIDE HOMECARE SERVICES LTD - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a recommendation of a Rights Commissioner R-064779-IR-08/JT.
BACKGROUND:
2. The Worker concerned was employed by the Company as a Homehelp from 21st February 2007 to the date of her dismissal on the 27th July 2007.
Following her dismissal the Worker referred the issue to the Rights Commissioner for investigation and recommendation. His recommendation issued on the 6th January 2009 as follows:-
"I have considered the submissions and arguments put forward by both parties. I have also considered the details of the complaints made on behalf of the claimant and by the respondent. In regard to the procedure in terminating the claimants employment, this was technically a breach of S.I. 146 2000. However I am satisfied that the respondents had good and reasonable grounds for terminating the claimants employment. I therefore do not find the claim in regard to her dismissal well founded and therefore it fails.
As regards the lack of proper procedure I award the claimant €100."
(The Worker was named in the Rights Commissioner's Recommendation).
The Worker appealed the recommendation of the Rights Commissioner to the Labour Court on the 26th January, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 24th April, 2009, 3rd September, 2009 and the 9th November, 2009.
WORKER'S ARGUMENTS:
3. 1.The Worker maintains that her dismissal was unfair and that it was due to her raising complaints with the HSE.
2. The Worker denies that the Employer raised issues concerning her work performance with her.
COMPANY'S ARGUMENTS:
4. 1. The Company maintains that it was unaware that the Worker had made a complaint to the HSE until after she had been dismissed.
2. The Company maintains that the Worker was spoken to on several occasions in relation to several incidents following her failure to follow the proper procedures as laid down in her job description.
DECISION:
The matter before the Court concerns an appeal by the Worker of a Rights Commissioner’s Recommendation which found that the Employer had good and reasonable grounds for terminating her employment and found against her claim of unfair dismissal. However, as he found that there had been a lack of proper disciplinary procedures he awarded the Claimant the sum of €100.00.
The Court has carefully considered the written and oral submissions of both parties and has examined the witness testimony of all the witnesses who gave evidence at the hearing.
Having evaluated all the information the Court does not accept that the Claimant’s dismissal was connected to complaints made to the HSE and it concludes that the Employer had justifiable grounds in the circumstances for terminating her employment.
However, the Court is satisfied that the process followed by the employer in this case did not comply with the Code of Practice on Grievance and Disciplinary Procedures (S.I. No 146 of 2000). Specifically, the Claimant was not issued with any written warnings in relation to her performance and compliance with Company requirements and was not afforded the opportunity to be represented.
Where a worker's employment is in jeopardy because of a failure to maintain acceptable standards of performance or behaviour it is imperative that proper procedures are strictly followed. This is a requirement of good industrial relations practice and is also necessary so as to ensure that the worker is left in no doubt as to what is required and of the consequences if those requirements are not met. Furthermore, the Court is expressly required by Section 42 of the Industrial Relations Act, 1990, to take the statutory Code into account in any case in which its provisions are relevant.
Having regard to all the circumstances of this case the Court is satisfied that the dismissal was procedurally unfair. The Court determines that the Claimant should be paid compensation in the amount of €1,500 (no part of which is for any loss of earnings) in full and final settlement of her claim.
The Rights Commissioner’s recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th November, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.