INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
M KELLIHER & SONS LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY MANDATE)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation RC993/97.
2. The worker concerned was employed by the Company as a stores operative from the 13th February, 1997 and was dismissed by the Company on the 5th September, 1997 for gross misconduct.
The Company claims that the worker attempted to sell Company property (2 cookers) to a third party without any prior authorisation to do so. It viewed this behaviour as gross misconduct on the part of the employee.
The worker rejects the Company's allegations. The Union claims that there was no evidence of any exchange between the worker and the third party to support the Company's claims.
The dispute was referred to a Rights Commissioner and a hearing took place in Cork on the 28th November, 1997. The Rights Commissioner recommended as follows:-
"I recommend that the Union's appeal against the worker's dismissal fails".
The Union appealed the Recommendation to the Labour Court on the 22nd December, 1997 in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 17th June, 1998.
3. 1. The worker was dismissed as a result of unproven allegations by the Company.
2. The worker has always denied the claim that he tried to sell Company property for personal gain.
3. The Union, or the worker, were not given the opportunity to refute the allegations made by the Company.
4. The Company cannot produce any proof that such an incident took place which is contrary to the laws of natural justice.
4. 1. The worker tried to sell company property to a third party which constitutes gross misconduct and is a dismissable offence.
2. The worker was identified by the third party as the employee who had offered to sell Company property without appropriate authorisation.
3. The Company afforded the worker every opportunity to refute the allegations to the Company's satisfaction but he failed to do so.
4. The Company is not obliged to give minimum notice to an employee who is dismissed by reason of gross misconduct.
It is not the function of the Court in cases such as this to determine the worker's guilt or innocence of the alleged misconduct. Rather its role is confined to considering if the employer acted fairly and reached an honest and credible conclusion on the evidence available.
While the Court has some reservations concerning the Company's decision not to identify or produce the person who made the complaint in the course of its internal investigation, though they did provide the information to the Court and the Court accepts, there nonetheless was a credible basis for arriving at the decision which it did.
In the circumstances the Court considers the Rights Commissioner's Recommendation reasonable and decides that it be upheld.
Signed on behalf of the Labour Court
22nd July, 1998______________________
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.