FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WESTERN CARE ASSOCIATION (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY GILVARRY & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of a Recommendation of a Rights Commissioner R-083072-Ir-09/Sr
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commissioners Recommendation No. R-083072-IR-09/SR. The Worker commenced employment with the Western Care Association in June, 2008 as a Social Care Leader. She was responsible for the management of two units in the Castlebar area. It is the Union's case that one unit was running well but there were a number of issues concerning the second unit. The worker raised a number of issues regarding staffing of the unit and health and safety concerns. A number of meetings took place between the Employer and the Worker concerning the problems raised. The Worker had her probationary period extended and was then dismissed. The Employer's position is that the worker was dismissed during her probationary period for failing to reach the required standard and not because she raised issues regarding health and safety.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 24th September 2009, the Rights Commissioner issued his Recommendation as follows:
"I am satisfied that the claimant was not treated unfairly or unreasonably by the employer, the complaint is rejected and is not upheld."
In August, 2010 both 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 5th May, 2011.
WORKER'S ARGUMENTS:
3. 1 The Worker was hired specifically to manage change within the two units. The Worker raised a number of problems within the second unit. She felt she was undermined by Management in her attempts to affect change in her capacity as a leader of the team.
2 The Worker was dismissed by the respondent in an unfair manner after putting up with a very difficult work environment with her direct line manager.
3 The formal extension of the Worker's probation period was not lawful. The Worker was not given the opportunity to fully defend her position through a proper grievance procedure.
EMPLOYER'S ARGUMENTS:
4. 1 The Worker's contract of employment agreed between the parties provided that the probationary period could be extended at the discretion of the Employer.
2 The Worker was made fully aware of specific issues with her performance and management style. These concerns were communicated to her verbally during numerous meetings and in writing through the minutes of those meetings.
3 The Employer gave the Worker every opportunity to improve her performance and only when it appeared there was no realistic prospect of these issues being addressed did they exercise its right to terminate her employment.
DECISION:
In this is an appeal against the Recommendation of a Rights Commissioner made under the Industrial Relation Act 1969. This appeal was considered in conjunction with the Claimants appeal under s.29 of the Safety Health and Welfare at work Act 2005.
The Court is satisfied that the Claimants probation was extended in accordance with the terms of her contract of employment and that she was dismissed during the currency of the probation period as extended.
In the appeal under the Act of 2005 the Court concluded that the operative reason for the Claimants dismissal was the differences between her and the management of the employer concerning issues relating to her management style. The Court is satisfied that these issues were formally raised with the Claimant on numerous occasions during the currency of her employment.
In all the circumstances of the case the Court is not satisfied that the dismissal was tainted by unfairness. In these circumstances the Court affirms the Recommendation of the Rights Commissioner and the appeal is disallowed.
Signed on behalf of the Labour Court
19th May, 2011______________________
DNKevin Duffy
Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.