INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
WEST DUBLIN EDUCATION CENTRE
(REPRESENTED BY FAWSITT & COMPANY SOLICITORS)
- AND -
PUBLIC SERVICE EXECUTIVE UNION
Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Alleged unfair dismissal.
2. The worker concerned commenced employment with the West Dublin Education Centre on the 9th of March, 1998, as an employee assistant officer. She was employed as part of a pilot scheme set up by the Department of Education and Science to provide an employee assistance service to teachers employed in primary and secondary schools.
In a letter of the 2nd of February, 1999, the worker was informed that following a review of her position, management had decided to terminate her employment with effect from the 10th of February, 1999. This date was later deferred to the 12th of February, 1999. The worker claimed that she had been unfairly dismissed and referred the matter to the Labour Court on the 1st of May, 1999, under Section 20 (1) of the Industrial Relations Act, 1969. The Employer's position is that the worker was absent on sick leave from the 28th of April, 1998 and as she was unable to return to work, to perform her duties, the decision to terminate her employment was a fair and proper decision in all the circumstances. It argues that it had not been informed of the difficulties which the worker's medical condition presented in terms of discharging her duties prior to her appointment.
The worker agreed to be bound by the Court's Recommendation. A Labour Court hearing took place on the 17th of October, 1999, the earliest date suitable to the parties. Subsequent to the hearing the West Dublin Education Centre furnished the Court with additional information in response to the claimant's submission.
3. 1. No procedures whatsoever were followed by the Education Centre when it decided to dismiss the worker. The precise complaint against her was never spelt out to her, and in effect the Education Centre took the decision to dismiss the worker without giving her an adequate opportunity to adduce arguments as to why she should not be dismissed.
2. The Centre's letter of the 12th January,1999 did not make it explicitly clear that a failure to return to work on the 1st February, 1999, would result in dismissal.
3. The problems arising from the worker's allergies were not addressed for some considerable time (seven months), and yet the Centre refused to allow the worker three working days to return to work.
4. The vast bulk of the absences from work were as a direct consequence of a condition known to the Education Centre prior to her appointment (it had been discussed at her interview). Despite this the Education Centre took an inordinate length of time to provide a suitable work environment.
5. No account was taken by the Education Centre of the worker's inability, through illness, to respond to its letter of the 12th of January, before a decision to dismiss her was taken.
6. The Education Centre was aware that the worker was represented by PSEU, but it did not contact the Union to see if it wished to make representations prior to deciding on the worker's dismissal.
7. The Union submits that the worker was unfairly treated and requests the Court to award substantial compensation.
EDUCATION CENTRE'S ARGUMENTS:
4. 1. The worker was given every opportunity to return to work in a safe working environment and Management made every effort to facilitate her, taking on board all modifications to the workplace that were suggested by her and her medical advisers.
2. Fair procedures were applied to the decision to terminate the worker's employment. It was made clear to the worker from an early stage that her future employment would be considered in the event that she was unable to furnish an expected date of return to work.
3. The Education Centre refers to the decision of the High Court in Bolger v Showerings Ltd, 24th of April, 1990, in which it was stated:
"In this case it was the ill-health of the plaintiff which the company claimed rendered him incapable of performing his duties as a forklift driver. For the employer to show that the dismissal was fair, he must show that:
(1) It was the ill-health which was the reason for the dismissal;
(2) That this was the substantial reason;
(3) That the employee received fair notice that the question of his dismissal for incapacity was being considered; and
(4) That the employee was afforded an opportunity of being heard.
It is submitted that the Education Centre complied with those requirements, that the worker was given adequate opportunity to be heard and that, in all the circumstances, the dismissal was fair and lawful.
The Court has given careful consideration to the submissions of the parties in this case.
The Court accepts that the claimant's employment was terminated on grounds which would probably be considered fair on the standards applied by tribunals having jurisdiction under the Unfair Dismissals Act, 1977-1993.
This Court is not such a tribunal. Under the Industrial Relations Act, 1946-1990, its function is to recommend a basis on which the trade dispute between the parties should be resolved. In so doing it is guided by established principles of good industrial relations practice.
On the facts presented, the Court is satisfied that both parties entered into the employment contract in the honest belief that its terms could be discharged satisfactorily in the manner envisaged. Through no fault of either party this turned out not to be the case. Having regard to the unfortunate circumstances in which the claimant's employment came to an end, the Court considers it appropriate to recommend that some gesture by way of severance terms, be offered by the Centre.
The Court recommends that the Centre offer and the claimant accepts an ex-gratia severance payment in an amount equal to one month's gross pay.
This payment should be accepted by the claimant in full and final settlement of all claims arising from the termination of her employment, but without prejudice to any claim which she may have for arrears of salary under her contract of employment.
Signed on behalf of the Labour Court
29th October, 1999.______________________
Enquiries concerning this Recommendation should be addressed to Fran Brennan, Court Secretary.