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2002

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AD0295

FULL RECOMMENDATION

CD/02/601
APPEAL DECISIONNO.AD0295
(IR7854/02/TB)
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969



PARTIES :
TBD DEVELOPMENTS LIMITED
(REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION)

- AND -
A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)


DIVISION :

Chairman: Mr Flood
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
SUBJECT:
1. Appeal of Rights Commissioners Recommendation IR7854/02/TB.


BACKGROUND:

2. The appeal concerns a worker who commenced employment with the Company in January, 2001. The worker was initially employed as a general operative and then as a banksman working with the crane driver on one of the Company's sites.The worker was dismissed on the 22nd November, 2001 following an incident involving him and the contracts manager. The Union claimed that the worker was unfairly dismissed. The Company rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 24th September, 2002 the Rights Commissioner issued his recommendation as follows;



"On the basis of evidence I do not find that the respondents action was unreasonable under the circumstances. I do, however, find that the claimant was entitled to be paid minimum notice of €450. I award him that amount".

On the 21st October, 2002 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 12th December, 2002.




UNION'S ARGUMENTS:

3. 1. The worker had a verbal exchange with the contracts manager, which arose as a result of the crane being out of order, but he did not make any threats. The worker was told to leave the site by the regional manager who had arrived at the scene.

2. The Company failed to apply fair procedure and afford the worker natural justice. A colleague of the worker who was present throughout the proceedings was not interviewed by the Company.

3. The Company failed to offer the worker representation at any stage.

4. The Company failed to afford the worker leave to appeal its decision.


COMPANY'S ARGUMENTS:

4. 1. It is standard practice in the industry that, in the event of a crane being out of order, employees will be asked to do other work on site. The crane driver had no problem doing alternative work, but the claimant refused to do any work.

2. During the conversation with the contracts manager, the worker became agitated, physically and verbally abusive and threatening. The regional manager, on being advised of the situation, contacted the Union and spoke to both parties to try and establish the facts. The claimant was given the opportunity to give his version of events. He did not deny threatening the contracts manager.

3. The Company decided to dismiss the worker on the grounds of gross misconduct. It acted in a fair and reasonable manner.





DECISION:

The Court after consideration of the written and oral submissions made by the parties concurs with the Rights Commissioner's findings that the respondents action in dismissing the claimant was not unreasonable under the circumstances.

However, the Court finds the lack of procedures and the manner of the dismissal fell short of the standard that would be expected from a reasonable employer.

The Court, therefore, recommends that the claimant be paid €1, 000 (inclusive of the €450 awarded by the Rights Commissioner) in full and final settlement of his claim, and that the Rights Commissioner's Recommendation be amended accordingly.



Signed on behalf of the Labour Court



Finbarr Flood
18th December, 2002______________________
todChairman



NOTE

Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.




 
 
 
 
 
 
 
 
 

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