FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : T & P KAVANAGH ENTERPRISE LIMITED (REPRESENTED BY NEIL J. BUTLER & CO., SOLICITORS) - AND - LAVINIA HALPIN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner r-072298-ir-08/MH
BACKGROUND:
2. The Worker was employed at the Benetton Store in Tullamore from 4th February, 2008 to 22nd October, 2008 as a part-time Sales Assistant. She was dismissed as a result of failing to comply with the terms of her contract which the Employer contends amounted to Gross Misconduct.
The issue involves a claim by the Employer. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 17th July, 2009, the Rights Commissioner issued his Recommendation as follows:
"The claimant was patently wrongfully dismissed in this case. The sanction applied was disproportionate and there was a complete disregard for the rules of natural justice and contractual obligation. I recommend payment of compensation in the amount of €7,500 (say seven thousand five hundred euro) as an appropriate remedy in this case".
On the 26th June, 2009 the Employer appealed the Rights Commissioners 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 2nd March, 2010.
UNION'S ARGUMENT:
2. 1. As a result of a family emergency the Worker was obliged to leave work early. She got permission to leave from the Shop Manager however she remained on the premises in order to allow her full-time work colleague to have her lunch break.
2. The following day the Worker was telephoned by a Company Director and was summarily dismissed for failing to notify a Company Director as required rather than the Shop Manager.
COMPANY'S ARGUMENTS:
3. 1. The actions of the Employee exposed her work colleague to risk as she was not fully trained, exposed members of the pubic to risk while on the premises and put the Company stock and good name at risk in the event of an emergency.
2. Taking into consideration all the circumstances of the case the award granted by the Rights Commissioner was excessive.
DECISION:
It is clear on the evidence before the Court that the Claimant was dismissed without being afforded any opportunity to respond to the allegations of misconduct made against her. That was in breach of her right to fair procedures both under her contract of employment and in natural justice. On that basis alone the dismissal was unfair. The Court is further satisfied that the Claimant's dismissal was a wholly disproportionate response to the event giving rise to that decision and was unjustified by any reasonable standard. Accordingly, the dismissal was both procedurally and substantively unfair.
In the Court's view that the conclusion reached by the Rights Commissioner is fully justified on the facts of the case and that his Recommendation is reasonable in all the circumstances of the case.
It is the decision of the Court that the appeal be disallowed and the Recommendation of the Rights Commissioner be affirmed. The compensation awarded should be paid within six weeks of the date of this Decision
Signed on behalf of the Labour Court
Kevin Duffy
29th March, 2010______________________
JFChairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.