INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
SKERRIES DEVELOPMENT AND COMMUNITY ASSOCIATION LIMITED (SDCA)
(REPRESENTED BY O'CONNOR SOLICITORS)
- AND -
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Alleged unfair dismissal.
2. The Association is involved in the economic social and cultural development of Skerries. It employs a full-time staff of 5 who are assisted by 12 community employment scheme workers and up to 60 voluntary helpers.
The worker commenced her employment with the SDCA, as a part-time fitness instructor, on the 22nd of March, 1993, with a probationary period of 6 months applying. Her employment was terminated on the 13th of August, on the grounds that "her performance as a fitness instructor at the centre, under the terms of her contract, had not achieved the expected standard". The worker claims that she was unfairly dismissed and "without benefit of clear oral and written reasons ...".
The worker referred the matter to the Labour Court, on the 13th of November, 1997, in accordance with Section 20(1) of the Industrial Relations Act, 1969. The worker sought to have the issue investigated by a Rights Commissioner but the Association declined to attend at a Rights Commissioner's investigation). The Court carried out its investigation on the 15th of January, 1998.
3. 1. The worker has been a victim of gross injustice and a probable breach of contract on her employer's part. While she would have been prepared to accept a reprimand, if appropriate, and would have responded positively to a reasonable approach, the complaints made against her defy rationality (details supplied to the Court).
2. The rules and regulations provided to the worker by the Association were those that applied to users of the facilities and while of interest to her, were not helpful in guiding her in interpreting her duties. Accordingly, she was seriously disadvantaged.
3. The employer appears to avoid specific allegations of misconduct by claiming that the worker's contract was of a "temporary nature". The contract was of a permanent nature, subject to the worker's satisfactory performance during the probationary period. The Association's claim that the worker was "regularly monitored" is rejected. She was actually afraid to attend meetings with those concerned as she met with condescension and aggression at all levels.
4. The alleged misconduct, if any, was far from substantial and any liberties taken by her were, if anything, naive, minor and forced on her my management mishandling. The worker rejects that she had shortcomings in relation to her work performance and any lack of punctuality or unauthorised absences (if any) were minor in the extreme. The worker was, at all times a conscientious and excellent worker.
5. The employer's action in refusing, post termination, to negotiate further despite a detailed appeal submitted by the worker, was unreasonable.
6. The employer is making a major play of its rights under the probationary clause of the contract of employment.
Any dismissal is unfair unless there are substantial grounds justifying it, and that regard will be had to the reasonableness or otherwise of the employer's conduct.
7. The treatment, by the employer, of the worker was far from the spirit of the Queries and Grievances Clause of her contract (details supplied to the Court).
8. The worker has challenged the allegation that she perpetrated any misconduct. Had she had the benefit of the Disciplinary/Dismissal Clauses, and the attention of the full SDCA Board, matters would not have escalated as they have done.
9. It is the worker's view that the termination was prompted by considerations other than so-called misconduct, and, accordingly, her rights have been grossly infringed.
10. The worker would have opted for resignation if provided with that less damaging option. However, she stayed on, naively, to fight what she believes to have been a serious injustice against her.
4. 1. The worker's employment was on a part-time probationary basis, and during the 22 weeks of her employment, her performance was regularly monitored. She was made aware of shortcomings in her performance, both formally and informally (details supplied to the Court). the worker was also reminded that she was on probation and that her continued employment would depend on improvement in her performance.
2. The Association's Board of Management is required to protect the health and safety of its staff, management and customers. The worker's avoidable absences from the Fitness Centre left the Centre vulnerable to a possible liability claim.
3. Management must reserve the right to assess probationary employees and make decisions accordingly.
4. The Board of Management believes that the worker was guilty of several clear derelictions of duty, which rendered her performance unsatisfactory, and, accordingly, her dismissal was both fair and reasonable.
The Court has given careful consideration to the written and oral submissions made by the parties. It has also had full regard to the evidence adduced as to the events leading to the decision by the employer to terminate the claimant's employment during her probation period.
The Court is satisfied that the employer advised the claimant of the perceived shortcomings in her performance. The claimant was also afforded an opportunity to meet with the Board of Management to discuss her future position before the decision to terminate her employment was taken.
The Court has also had regard to the terms of the contract of employment entered into between the claimant and the employer, signed by both parties on 16th March 1993. This contract provides for a probationary period of six months during which the employment may be terminated on grounds of unsuitability.
In all the circumstances of this case, the Court is satisfied that the employer acted reasonably in reaching the decision not to continue the claimant's employment, within the six-month period stipulated in her contract of employment.
The Court recommends that the claimant accept that her dismissal was not unfair.
Signed on behalf of the Labour Court
9th of Febuary, 1998______________________
Enquiries concerning this Recommendation should be addressed to Michael Keegan, Court Secretary.