FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TK MAXX (REPRESENTED BY TK MAXX NORTHERN REGIONAL OFFICE) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Unfair dismissal.
BACKGROUND:
2. The Claimant commenced his employment with the Company, a retailer of discounted fashion clothing, as the Loss Prevention Investigator at their Waterford store on the 23rd September 2008. Following a meeting which investigated a discrepancy that was discovered between rostered hours and actual hours worked, the Claimant was dismissed to take effected on the 23rd December, 2008. The Claimant contends that the dismissal was unfair.
On the 9th October, 2009 the Union referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 23rd June, 2010.
UNION'S ARGUMENTS:
3. 1. Management were made aware at the outset that the Claimant was a retained member of Waterford City Council's Firefighter Force and could without notice be required to attend a call. This happened on six occasions and any hours owing to the Company would be worked back into the roster. There was a degree of agreed flexibility regarding the rostered hours and when they could be worked ensuring that the Company would not suffer any loss.
2. Given that the Management accepted that the Claimant was a Retained Firefighter they cannot now complain that he failed to fulfil his rostered hours at the appointed time. Therefore there was no valid reason for the decision to dismiss.
COMPANY'S ARGUMENTS:
4. 1. It was agreed at interview stage that his role as Retained Firefighter would not conflict with his duty to the Company, as colleagues in the service would cover any callouts during his working hours. The Claimant was dismissed for failure to fulfil contracted hours and a conflict of interest which amounted to gross misconduct as defined in the Company Handbook.
2. It is not credible that the Claimant would believe that it was acceptable for him to absent himself from the store, without permission, at the busiest time of the year and leave the store vulnerable without any Loss Prevention Investigator.
RECOMMENDATION:
The Court notes the conflict of evidence from both sides on the arrangement entered into when the Claimant was recruited in terms of his position with the Company and his role as a Retained Fire Fighter. It appears to the Court that there was a complete misunderstanding about any level of flexibility in his working hours. The Claimant had set working hours, which were signed off by his manager, however his manager was not aware that he was not adhering to the agreed rostered hours.
Having considered the positions of both parties the Court is of the view that even if there was an agreement in place about the Claimant attending to fire calls, there was no agreement on him absenting himself for any other reasons.
For all the above reasons the Court finds that the summary dismissal of the Claimant was excessive in the circumstances of this case. However, the Court is of the view that a final written warning may have been more appropriate in the circumstances to highlight that his approach to reporting for work was unacceptable, to set out clearly the Company’s requirements and expectation of attendance during rostered hours and to convey that his employment was in jeopardy.
Consequently, the Court is of the view that the summary dismissal of the Claimant was inappropriate in the circumstances. Consequently, the Court recommends that the Claimant should be compensated by the payment of €1,000.00 in full and final settlement of the claim before the Court.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th July, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.