INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SMURFIT PRINT LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
GRAPHICAL PAPER AND MEDIA UNION
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal by the Union against Rights Commissioner's Recommendation No. RC960/97.
2. The appeal concerns a worker who commenced employment with the Company as a printer on the 24th of February, 1997. He was on six months probation. The worker was dismissed on the 27th of August, 1997. 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 7th of October, 1997 the Rights Commissioner issued his recommendation as follows:-
"I recommend that the worker and the Union accept that the dismissal was fair."
(The worker was named in the Rights Commissioner's recommendation).
On the 7th of November, 1997 the Union appealed the recommendation to the Labour Court. The Labour Court heard the appeal on the 22nd of January, 1998.
3. 1. The worker, as a member of the Union is protected by the Registered Employment Agreement for the printing trade in Dublin. The Company insisted that the worker concerned would not be employed unless he accepted a contract of employment which was different and offered less favourable conditions than the Registered Employment Agreement (REA) in respect of probationary periods. The REA has a six week probationary period whereas the contract forced on the worker had a six months duration. The worker who was unemployed, through redundancy, had no option but to sign the contract. The Union has now negotiated a reduction to three months in respect of probationary periods on an interim basis.
2. During his employment the worker was an excellent printer and a conscientious and punctual worker. He had a good rapport with his supervisor and during a conversation informed him that he had previously had a problem with alcohol but was cured.
3. On the 15th of August, 1997 the worker contacted the Company to report that he was unfit for work due to illness and confirmed it on the 18th of August. The supervisor accepted this and excused the absence. The Company wrote to the worker on the 23rd of August and he responded promptly outlining the reasons for his absence, (details supplied to the Court).
4. At a meeting with Management on the 26th of August, the worker was accused of having a drink problem. He referred to the letters from his doctor covering his sick absences but was not given the opportunity for representation at this meeting. On the 28th of August, the worker received, by post, a cheque covering his statutory entitlements together with his P45. He was not given a reason for his dismissal.
5. The Company did not follow the correct procedure as provided for in the worker's contract of employment. He was dismissed outside the probation period. Notwithstanding this it is contrary to natural justice that a worker can be dismissed due to an admission by him that he had a drink problem in the past.
6. The worker was dismissed in an arbitrary and unfair manner in contravention of procedures. The Union seeks his reinstatement.
4. 1. From the commencement of the worker's employment on the 24th of February, 1997 there were no issues regarding his attendance until the 14th of August, 1997. On Monday, 11th of August the employee reported for work and advised he had been drinking heavily over the weekend on the 9th and 10th. He asked for, and was granted, permission to go to the local doctor and renew his prescription for medication related to his drinking. He worked from Monday 11th to Wednesday 13th of August inclusive but did not report for work on the 14th nor did he advise of his non-attendance. He did not report for work on Friday 15th and later that day the worker rang the Company stating his absence was due to his drinking but he had taken medication and was feeling better. He was advised to report for work on the 18th of August.
2. The worker did not report for work on the 18th of August, and between that date and 26th of August, with the exception of one call from a relative on the 18th, the worker was absent from the employment without submitting medical certificates or adequate explanations. On contacting the Company by phone on the 25th of August the worker offered various excuses for his absence which were untrue (details supplied to the Court).
3. The Company had a letter delivered to the worker's house on the 26th of August and on that date he reported to reception in the afternoon where he was met by Management. In an adjacent meeting room the worker was asked to explain his absences, and advised that he did not realise that the Company was aware that his absence was related to an alcohol problem. The worker reluctantly agreed that this was correct.
4. Management stated that the Company was totally dissatisfied with the worker's absenteeism, his failure to keep the Company informed as per procedure, his failure to tell the truth regarding the reasons for his abseentism. The worker was informed that he was still on probation and in the circumstances Management told him that it was probable that he could not continue in the employment. An offer was made to organise a meeting the following morning with the worker, his Union representative and the immediate supervisor. The worker declined this offer. Shortly afterwards Management advised the Union of what had transpired.
5. On the 28th of August, 1997 the Company forwarded the worker a cheque covering his statutory entitlements and also his P45. In the circumstances the Company treated the worker in a fair and reasonable manner and requests the Court to uphold the Rights Commissioner's recommendation.
Having regard to the issues before the Rights Commissioner, the Court considers his recommendation to be reasonable and finds that it should be upheld.
However, the Court has considerable sympathy for the predicament in which the worker found himself. It is also impressed by the honesty and frankness which he showed at the appeal hearing in addressing his underlying problem. In these circumstances the Court would urge the Company to consider re-employing the worker on an extended probationary period, to the first available suitable vacancy. This would be on the basis of a clear undertaking by him that he would continue to address the problem which lead to his dismissal and otherwise provide satisfactory service.
Signed on behalf of the Labour Court
30th January, 1998______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.