FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SOUTH KERRY DEVELOPMENT PARTNERSHIP LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms O'Donnell |
1. Appeal of Rights Commissioner's Recommendation r-149029-LR-14
BACKGROUND:
2. This is an appeal by the Employer of Rights Commissioner Recommendation No: r-149029-LR-14. The issue concerns the dismissal of the worker. The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 9th September 2015. On the 25th September 2015 the Company appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 17th February 2016.
DECISION:
The matter before the Court concerns an appeal by South Kerry Development Partnership of a Rights Commissioner’s Recommendation concerning the Claimant’s claim that he was unfairly dismissed. The Rights Commissioner found that the core issue in the claim was that the Department of Social Protection treated his termination of employment as a dismissal and refused his application for job seekers allowance. He found that while the Employer was technically correct in terminating his employment, he nonetheless recommended that the Employer should pay the Claimant a payment of €900 as a gesture of goodwill.
The Claimant was employed on a community work placement scheme by South Kerry Development Partnership on a contract with T�S from 24thFebruary 2014 until 4thApril 2014. On 31stMarch 2014 he was informed that his contract with T�S would terminate on 4thApril 2014 and that South Kerry Development Partnership did not have a suitable placement to offer him going forward.
Pobal Guidelines for Implementing Bodies for T�S Programmes, Guideline 5.12.3 states that the DSP Office that referred the participant should receive a formal notification of the termination of the participant’s contract with the Implementing Body.
The Employer disputed the claim of unfair dismissal stating that the Claimant had been offered a number of alternative positions, most were refused as the hours did not suit him or the duties did not suit him. He commenced the final position on 24thFebruary 2014, however shortly afterwards he sought to change the hours to suit his personal circumstances due to his wife’s accident.
The Claimant was required to attend a disciplinary hearing on 21stMarch 2014 regardinginter aliahis unwillingness to work the hours he had agreed to and turning up for hours he was not scheduled to work. The Employer stated that as this was a job sharing role he was required to work the opposite hours of the job share person. As no alternative position was available it submitted that it had no alternative but to terminate his employment. The Employer appealed the Recommendation to pay a goodwill gesture as it is a not for profit organisation and it is not permitted to redirect funding from other services.
The Court had considered the submissions made by both parties. The Court is satisfied that the Employer make a number of efforts to accommodate the Claimant, however, he did not accept them or they did not suit his requirements, due to personal reasons.
On balance the Court is of the view that the termination procedures were insufficient and the Claimant was unfairly dismissed, however, in all the circumstances of this case, the Court does not recommend a compensatory award. Instead the Court recommends that the Employer should give the Claimant an undertaking that when he is in a position to qualify under the scheme for a placement that every effort will be made to accommodate him.
The Rights Commissioner’s Recommendation is varied accordingly and the appeal is upheld in part.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CO'R______________________
9th March, 2016Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.