FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IRISH POSTMASTERS UNION - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner R-091274-Ir-10/Rg
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commissioner's Recommendation No R-091274-IR-10/RG. The Worker commenced employment with the Employer in August, 2009 as General Secretary. He signed a 3 year fixed term contract of which the first six months would be a probationary period. The Worker had his first performance review in October, 2009 and a second in January, 2010. It is the Union's case that no negative feedback was given after each of these reviews. Following a presentation given by the Worker on 26th January, 2010, he was informed that his probation would be extended by a further three months. It is the Employer's position that it had some reservations about his performance. The Worker outlined his concerns relating to the extension of the probationary period in a letter to the Employer. As agreement on this point could not be reached, the Employer terminated the Worker's contract. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th October, 2010, the Rights Commissioner issued his Recommendation as follows:
" On the basis of the evidence and with particular reference to the Contract of Employment of 10th August 2009, signed by both the Claimant and the Employer, which provides for the termination of the contract during or at the end of the probationary period of six months I do not find the decision by the Employer to terminate was in breach of the contract"
On 25th October, 2010 the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 6th January, 2011.
WORKER'S ARGUMENTS:
3. 1 No formal grievance or disciplinary procedures are outlined in the contract terms. The provisions of Statutory Instrument 146 of 2000 must be applicable in the context of the Worker's employment.
2 In previous Labour Court Recommendations it has been the view of the Court that fair procedures must be adhered to. If this principle is to be applied to the Worker concerned, the Employer has fallen well short of the required standard as put down by the Court.
3 The worker was denied the principles of fair procedure in that he was not given the right to reply, he was denied the right to representation and was not afforded the opportunity of an appeal against the termination decision.
EMPLOYER'S ARGUMENTS:
4. 1 The Employer was not in breach of Statutory Instrument 146/2000. This instrument presupposes that there was a grievance/disciplinary process in train.
2 In the Worker's case there was never any question over discipline. It was a question of overall suitability for the role.
3 The provision for the extension of the probationary period is explicit in the contract between the parties and is at the sole discretion of the Employer. As the worker reacted adversely to the extension the Employer had no choice but to terminate his contract.
DECISION:
The matter before the Court concerns an appeal of a Rights Commissioner’s Recommendation, which found against the Worker’s claim that his Employer unfairly dismissed him.
The Appellant submitted that the dismissal which occurred during his probationary period was unfair and was conducted without due regard for fair procedures. He held that he was not given a right to reply, he was denied the right to be represented and he was not afforded the opportunity of an appeal against the termination decision.
In its defence the Employer submitted that the Appellant was treated in accordance with his contract of employment, which provided for an ongoing review of his performance and included a clause, which stated,“Either party may terminate employment during the probation or at the end of the probation period.”
The Employer submitted that while there were no disciplinary issues with the Appellant, concerns did emerge about his overall suitability for the position and it was decided to extend his probation. When he objected to such an extension, it was decided to terminate his employment, and pay him three months salary in lieu of notice, as per his contract of employment.
The Court has carefully considered the written and oral submissions of both parties. It is clear to the Court that the rationale behind the termination of employment was the Employer’s error in appointing the Appellant to the position in the first place and it consequently sought to extricate itself from that contract.
In all the circumstances of this case, the Court finds that the Employer’s decision not to adhere to either its own disciplinary procedures or be bound by the provisions of the Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 0f 2000 because he was on probation, was misconceived.
Consequently, the Court finds that the dismissal of the Appellant was unfair. The Court finds in favour of the appeal and overturns the Rights Commissioner’s Recommendation.
The Court recommends that the Appellant should be compensated by the payment of €30,000 in full and final settlement of the claim before the Court. For the avoidance of any doubt this recommended payment is in addition to the three months pay in lieu of notice already paid.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th January, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.