FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SHAWS AND SONS LTD - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr McGee Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Dismissal without recourse to Due Process
BACKGROUND:
2. This case concerns a dispute between Shaws and Sons Ltd and MANDATE Trade Union in relation to the dismissal of a worker from the Company's employment. The Union position is that the worker was dismissed without recourse to fair procedures and natural justice on the basis that Management summarily dismissed her, while she was absent on certified sick leave with an occupational injury.
The matter was referred to the Labour Court on 23rd February, 2009 in accordance with Section 20(1) of the Industrial Relations Act, 1969. The worker agreed to be bound by the Court's Recommendation:
The Company declined an invitation to attend the Labour Court hearing but did outline its position in correspondence to the Court. The Company contends that the claim is factually incorrect, that the worker was dismissed during her probationary period, which is management's prerogative and that the claimant had received written warnings in relation to her levels of absence and issues concerning her continued employment with the Company.
A Labour Court hearing took place on 22nd September, 2009.
UNION'S ARGUMENTS:
3 1 The worker was absent on certified sick leave due to an occupational injury sustained while moving/lifting large items of Company stock. Any training that was provided in manual handling took place after the injury had occurred.
2 Management dismissed the worker while absent on certified sick leave without agreeing to discuss the relevant issues or enter into third party negotiations on a suitable resolution. This is unacceptable and at variance with the principles of natural justice.
3 Management contend that it was entitled to dismiss the worker during her probationary period and that all contracts of employment included this provision. This is an attempt by management to use the probationary period to dismiss a worker on the basis of Health and Safety issues she had raised that the Company was not willing to address.
RECOMMENDATION:
Having considered the matter, while the Court accepts that the claimant was in her probationary period, any worker who is to be disciplined or dismissed must be the subject of clear, defined and fair procedures.
The Court is not satisfied that such procedures were followed in this case by the employer and awards the claimant compensation of €2,000.
The Court so recommends.
Signed on behalf of the Labour Court
Raymond McGee
9th October 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.