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2002

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AD0278

FULL RECOMMENDATION

CD/02/377
APPEAL DECISIONNO.AD0278
(IR6800/TB)
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969



PARTIES :
MUSGRAVE SUPERVALUE CENTRE

- AND -

JOHN HUGHES
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)


DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
SUBJECT:
1. Appeal against Rights Commissioners Recommendation RR6800/TB.


BACKGROUND:

2. The worker was employed by the Company as a Distribution Team Member on 8th, July, 2001. In November 2001, the worker was dismissed during his probationary period. Discussions took place locally and no agreement could be reached.

The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's recommendation is as follows:-

" Onbalance I consider that the company should have extended his probationary period as requested by the claimants union. As the claimant has now left the employment I recommend that they pay him €250 in compensation"

On the 12th, July, 2002, the Union appealed the Rights Commissioner's Recommendation to the Labour Court under Section 13(9) of the Industrial Relations Act, 1969. The Court investigated the complaint on the 7th November 2002.


COMPANY'S ARGUMENTS:

3. 1. The Company reserves the right to utilise the industry standard probationary period and all it's component clauses fully to ensure the ongoing longevity and cohesiveness of its workforce in its ever demanding market place.

2. The Company has to maintain standards in terms of productivity, performance and conduct.

3. In a work place involving some 300 staff it is necessary to establish standards and to manage them accordingly. This is a pre-requisite to a successful business.

UNION'S ARGUMENTS:

4. 1. The claimant was not properly counselled during October 2001, and early November 2001 on the basis of Management's concerns.

2. No warning was issued to the worker.

3. The worker was counselled, warned and dismissed at the same meeting.


DECISION:

The Court has considered the oral and written submissions of the parties. The Company stated that the dismissal of the worker was due to serious misconduct and following an investigation it was decided to terminate his contract of employment.

The Court has established that the facts of the case are that an investigation was carried out without Union involvement and the worker was not informed of the investigation or it's outcome of a finding of serious misconduct. Additionally, there was no suspension of employment in accordance with the Company's procedures. Furthermore, the decision to dismiss was not taken following the investigation. Instead a counselling meeting was held post the investigation. The decision to dismiss was taken at a second "counselling" meeting one month later. This was not in accordance with formal disciplinary procedures nor with the Company's own procedures.




Having considered the circumstances of this case, the Court is of the view that the dismissal was procedurally flawed and recommends that the compensation awarded by the Right's Commissioner should be amended to €2,000.

Therefore, the Union's appeal is allowed.

The Court so decides.







Signed on behalf of the Labour Court



Caroline Jenkinson
22nd November, 2002______________________
HMCD/MB.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.




 
 
 
 
 
 
 
 
 

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