INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
M.V. TECHNOLOGY LIMITED
- AND -
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Appeal against Rights Commissioner's Recommendation No. 1139/97.
2. The appeal concerns a worker who was employed by the Company as an Executive Administrator on a salary of £12,000, from the 28th of July, 1997, until her dismissal on the 1st of November, 1997.
The dismissal was, the Company indicated, on the grounds that the worker did not have sufficiently fluent English. The worker, who left employment in Spain to take up the new post, stated that, shortly after her appointment, she was asked to work in the capacity of receptionist, the duties of which involved considerable use of telephones. Whilst acknowledging that some difficulty arose concerning her understanding of some company's names, etc., she claims that, as she had been employed as an Executive Administrator and not as a receptionist, the Company had acted unfairly in dismissing her.
The matter was the subject of investigation by a Rights Commissioner who concluded that the worker had been recruited from Spain, because of her knowledge of Spanish, for a senior administrative position in the Company, but that the Company had changed the job requirements to include receptionist duties, which required complete fluency in English. Given this change, and that there were no other difficulties, the Rights Commissioner felt that the worker had not been given a fair chance by the Company. While accepting that the Company's Financial Controller had spoken to the worker, on the day before her dismissal, the Rights Commissioner concluded further that the failure of those with whom she worked directly, and those who recruited her, to speak to her or to attempt to resolve the difficulties was unfair.
The Rights Commissioner found that the worker was unfairly dismissed and recommended that she be paid one month's salary by way of termination payment, as compensation.
The Rights Commissioner's Recommendation was appealed, by the worker, to the Labour Court, on the 1st of May, 1998, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 1st of July, 1998.
3. 1. There were no complaints from the Company, including Directors to whom she worked, regarding the worker's performance as Executive Administrator, as evidenced by a reference from one of her supervisors (details supplied to the Court).
2. The reason given for dismissal, i.e., that the worker's English was not perfect is rejected. Although some difficulties had arisen, this was due to her being required to provide cover at reception which was not a requirement of the position to which she was appointed.
3. On the day before her dismissal, following a discussion with the Financial Controller on the matter of her fluency in English, he responded positively when the worker expressed her intention to commence a course in order to improve matters in that regard. However, on the following day, she was given her notice.
4. The dismissal may have been due to a possible dislike of the worker by a Director in the Company, which was apparent from his unkind attitude towards her.
4. 1. The worker was employed as an Executive Administrator for an initial 6-month probationary period during which the Company would review her performance with a view to deciding on her long-term prospects. Her role included extensive daily correspondence, both written and verbal, with important customers and clients and, therefore, fluent English was a necessity. This was made clear to her at interview. In her Curriculum Vitae, and at interview, the worker stated that she was fluent at English but it became apparent, subsequently, that she did not have the level required for the role of Executive Administrator.
2. Following a number of complaints from important customers and clients the Directors decided to terminate her contract, within her probationary period.
3. The reference received from her supervisor was given as a personal favour.
4. The perception that a Director took a dislike to the worker may have arisen because he believed her not to be up to the job.
The Court is not satisfied with the explanation given by the Company for the dismissal of the claimant.
Given that two Senior Executives interviewed her for the post, at which stage the standard of her English must have been obvious, it is difficult to accept the explanation.
The Court is also concerned that the Company claimed that the directors had for some time been discussing her shortcomings but at no stage was she made aware of a problem. The Company representative did claim that he had indicated these difficulties the day before she was dismissed.
The Court found it more credible that, as the Rights Commissioner stated, the job requirement was changed, for whatever reason, after she was recruited.
The Court upholds the Rights Commissioner's finding that the claimant was unfairly dismissed.
Having taking into account all aspects of this case, the Court finds that compensation of 3 months' salary is more appropriate and amends the Rights Commissioner's Recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
8th July, 1998______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.