AD1254

On the 4th June, 2010, the Worker 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 8th September, 2011. Subsequent hearings took place on 1st December, 2011 and 31st May, 2012.

WORKER'S ARGUMENTS:

3. 1. The Worker contends that he was treated in an unfair manner and his behaviour did not warrant dismissal.

2. The Worker alleges that he was dismissed without prior warning.

EMPLOYER'S ARGUMENTS:

4. 1. The Worker was issued with many verbal warnings and two written warnings prior to his dismissal.

2. A series of incidents of unacceptable behaviour led to the Worker being issued with a final written warning prior to the termination of his employment.

3. The Employer strongly asserts that every effort was made to allow the Worker to remain in employment, however, it was not possible to do so. The Employer had no alternative other than to dismiss the Worker.



DECISION:

The matter before the Court concerns an appeal of a Rights Commissioner’s Recommendation which found in favour of the Worker’s claim that he was unfairly dismissed by his Employer. In his findings the Rights Commissioner held that the Worker’s employment was terminated in a manner which was not consistent with the principles of natural justice and fair procedures, however, he found that the Worker had significantly contributed towards his dismissal and in those circumstances awarded him the sum of €5,000 in compensation.

The Worker appealed the quantum of the award recommended by the Rights Commissioner.

Background

The Appellant was employed as a Tailor from 8^thDecember 2007 until 6^thSeptember 2008, when his employment was terminated. His contract of employment dated 15^thFebruary 2008 was for a two year term to run from 1^stJanuary 2008 until 1^stJanuary 2010.

The Appellant’s Case

The Appellant maintained that he was dismissed from his employment as a result of a request he made to the General Manager on or about 20^thAugust 2008 to be paid overtime pay for extra hours worked on Saturdays and Sundays. He said that he was at the time working excessive hours with no overtime pay and when he attempted to organise his workload in a more structured manner his request was denied; he was told that he would be dismissed if he did not continue to work the weekends for the same pay and he would not be paid at overtime rates. He then refused to work overtime for the week 23^rdto 29^thAugust 2008. In or around these dates an incident occurred whereby he was accused of an abusing and striking a female colleague, an accusation which he denied. He was dismissed the following week. He said that no disciplinary meeting nor investigation took place into the alleged incident and he was never given an opportunity to rebut the allegations.

The Employer’s Case

The Employer submitted that the termination of the Appellant’s contract was made for good and justifiable reasons on the basis that he had been issued with at least ten verbal warnings and two written warnings and following the second written warning he abused and struck a female member of staff. This latter incident followed threats he had made during the last week of August 2008 to both the General Manager and the Assistant General Manager. The Employer submitted that the seriousness of the Appellant’s actions justified the dismissal; it had carried it out in accordance with its agreed procedures and in compliance with the principles of natural justice and fair procedures.

The Employer told the Court that the Appellant was excellent at his work and that it had “bent over backwards to look after him and his family”. The Appellant is a Spanish citizen of Moroccan origin and the Employer had ensured that he had accommodation and a visa. The Employer stated that he was under the impression that the Appellant was Moroccan. After his employment had terminated with the Employer the Appellant had set up a tailoring business nearby in accommodation which the Employer organised and such was the high esteem in which the Employer held his work that it had provided him with work and recommended customers to go to him.

The Employer told the Court that when the Appellant commenced employment there were no problems, however, after a short time he began to behave in a very aggressive manner towards other members of staff and it got to such a state that staff were afraid to enter the tailoring room.

The Employer told the Court that it provided an interpreter whenever it was necessary to communicate warnings to the Appellant, during pay negotiations and during the incident when the female colleague was upset.

Findings of the Court

The Court has given careful consideration to the submissions made by both parties and has heard evidence under oath from the Appellant and from a number of witnesses put forward by the Employer. The case was heard over three days in Cork.

Having considered all the evidence given and the submissions made the Court concurs with the findings and Recommendation of the Rights Commissioner. The Court concurs with the view that the Appellant’s employment was terminated in a manner which was not consistent with the principles of natural justice and fair procedures. However, the Court is satisfied that by his behaviour and attitude towards his employer and other members of staff the Appellant had significantly contributed towards his own dismissal. In the circumstances, the Court upholds the Rights Commissioner’s recommended award of €5,000 in compensation.

The Court so Decides.



Signed on behalf of the Labour Court



Caroline Jenkinson
27th June 2012______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.