INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr Rorke
1. Alleged unfair dismissal of a worker.
2. The worker concerned commenced employment with the Company on the 12th of October, 1998 and was initially employed in the Delicatessen at the Company's News Express outlet in O'Connell Street. On the 6th of January the worker was transferred to the Centra Quick-Stop, O'Connell Street branch. She was dismissed on the 14th of February, 1999. The Union claimed that her dismissal was unfair and sought to refer the issue to a Rights Commissioner for investigation. The Company objected to such a referral. On the 14th of June, 1999, the Union referred a complaint to the Labour Court under Section 20(1) of the Industrial Relations Act, 1960 and agreed to be bound by the Court's recommendation. A Court hearing was held on the 27th of September, 1999.
3. 1. The worker did not receive a contract of employment nor did she receive a wage slip. During the course of the worker's employment she was a diligent worker and was commended by Management for her performance. The worker's employment was terminated in a most public way without reason or reference. She was degraded both in front of customers and when she sought her wages and entitlements having worked out her notice. To the present time the worker has been refused a reason for the termination of employment, she has not been given a reference in respect of service.
2. The employer refused the worker's written requests, refused to attend a Rights Commissioner's hearing and left the claimant with no alternative but to seek a hearing under Section 20(1) of the Industrial Relations Act, 1969. The employer has shown scant regard for legislation in not providing the worker with her statutory entitlements, to a contract of employment, pay slip and ignored her right to fair procedures in respect of an explanation for the dismissal and a reference in respect of service.
3. The Union seeks appropriate redress as follows:-
1. that an apology be given to the worker;
2. that she be given a suitable reference;
3. that she be paid compensation for the loss of her job because of arbitrary and unfair dismissal.
4. 1. The worker was appointed to the Company's Deli Counter at News Express store in O'Connell Street following an interview with the employer. Her rate of pay, hours of work, reporting structure, probationary period and other terms of employment were agreed with the worker and a note of same was placed on her file.
2. During the first three months of employment the worker was counselled by Management in relation to her attitude to customers, work colleagues, time-keeping, her changing of staff rosters on occasion to suit herself without authority, and the high percentage of "wastage" being shown in the costing figures for the Deli Counter, specifically attributable to the worker's mismanagement of the rotation and dispensing of food. Management also had to counsel the worker in relation to the filthy condition of the Deli Counter. The worker was extremely rude to Management.
3. It became very obvious by early December, 1998 that the worker lacked the esteem, team camaraderie of her colleagues and in fact the experience necessary to remain on the Deli Counter.
4. In mid-January, 1999 the worker sought a transfer to the O'Connell Street outlet and management acceded to this request when a vacancy became available in early February. There was no improvement in the worker's attitude to customers or fellow workers and both customers and staff complained about her behaviour.
5. The Company had no option but to terminate the worker's employment. She was on probation, and was afforded every opportunity to improve her performance through counselling and training. Her performance was monitored by Management, however, the Company experienced quality, service, wastage, absence, time-keeping and attitudinal problems and it became quite clear that she was not suitable to the Company's type of operation. The Company legitimately exercised its right to terminate the worker's employment.
In this case the Court is faced with a total conflict of evidence on all of the material facts surrounding the claimant's dismissal. There is also fundamental disagreement on whether or not the claimant was on probation. This situation has been compounded by the employer's failure to provide the claimant with a statement of her conditions of employment, including the length of any probation period and the details of disciplinary procedures to be followed where necessary.
Having regard to all of the circumstances of this case the Court is not satisfied that the claimant was made fully aware that she was on probation. Neither is it satisfied that she received adequate or fair warnings that her continued employment was in question. In that regard, the employer accepts that the provisions of the Code of Practice on Disciplinary Procedure (S.I. No. 117 of 1996) were not followed in this case. This in itself is sufficient to render dismissal unfair.
In the Court's view the claimant was unfairly dismissed. As the claimant obtained alternative employment within a short period, the Court recommends that she be paid compensation in an amount equal to four weeks gross pay and that she be provided with an adequate reference.
This recommendation is made without prejudice to any claim, which the claimant may bring under the Terms of Employment (Information) Act, 1994.
Signed on behalf of the Labour Court
7th October, 1999______________________
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.