INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
EASTERN HEALTH BOARD
- AND -
(REPRESENTED BY THE IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal against the Rights Commissioner's Decision IR 229/99/CW.
2. The worker commenced employment as a child care worker with the Eastern Health Board (the Board) in Newtown House on the 13th of May, 1996. Her appointment was subject to a satisfactory completion of a 12 month probationary period.
In April, 1997, the worker's probation was extended for 3 months and in June, 1997, it was extended for a further 6 months. On 25th of August, 1997, the worker went on special paid leave because of the following 2 incidents:
(1) Serious threats had been made against her personal safety.
(2) A complaint by 2 female residents had been lodged against her on the 22nd of August, 1997.
Following a meeting in October of 1997, it was agreed to refer the worker to a consultant child and adolescent psychiatrist to assess what problems the worker might have. In April, 1998, the consultant issued a report stating that it was reasonable to plan the worker's re-integration into Newtown House.
Following discussions between the parties, the worker returned to her job on the 3rd of June, 1998. Her probation was extended for a further 6 months and, the Board claims, she was advised that if this period of probation was not successful, her employment could be terminated. A final probation report was completed on the 10th of December, 1998, and it was decided to terminate the worker's employment. She was informed of this on the 8th of February, 1999, although the actual date of the termination was the 10th of March.
The Union's case is that the worker was unfairly treated. It claims that she had been promised support and assistance on her return to work in June, 1998, as well as regular supervision. It is also seeking compensation for loss of premium earnings for the period 25th of August, 1997 to 3rd of June, 1998. The Board's view is that the dismissal was fair as the worker did not have the necessary skills for the job.
The dispute was referred to a Rights Commissioner and his Recommendation is as follows:
"I recommend that the Board offer and the worker accept 2 months' salary in settlement of this dispute."
The Union appealed the Recommendation to the Labour Court on the 18th of June, 1999, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 16th of September, 1999.
3. 1. In terminating the worker's employment, the Board acted contrary to the normal rules of natural justice. No justifiable reason was given as to why her work was unsatisfactory.
2. The consultant's report stated that the worker should have regular supervision upon her return to Newton House. The Board agreed that supervisory sessions would occur every fortnight at least. This did not happen. She received no meaningful supervision from September to December, 1998.
3. The worker was given no opportunity to make appropriate representation with her Union representative present, before the decision was made to dismiss her.
4. The worker is a qualified care worker. The Board could have placed her elsewhere but chose to dismiss her.
5. The worker's 6 month probation should have finished on the 3rd of December, 1998. The Board did not extend the probation yet it did not dismiss the worker until the 10th of March, 1999.
4. 1. The Board did not feel that the worker had the necessary skills to do her job properly. She was given every chance - including having her probation extended 3 times - and was advised of deficiencies in performance and improvements needed.
2. The worker was given appropriate support and assistance by Management, including referral to the consultant to assess her problems with the work.
3. The final probation report of the 10th of December, 1998, was discussed with the worker. While there had been some improvement in her performance, it was felt that it was not enough.
The Court has given careful consideration to the written and oral submissions made by the parties. The Court is of the view that the procedures carried out in relation to the appellant's termination of employment were seriously flawed. While her probationary period had been extended on a number of occasions, she was not given an adequate opportunity to have her performance assessed. The decision to dismiss her appears to have been taken without any consultation with her or her representative.
It is acknowledged that there were difficulties with her performance. However, her efforts to improve were not reciprocated with feedback from Management. Therefore, the Court decides that the award recommended by the Rights Commissioner should be increased to £5,000 in full and final settlement of this dispute.
The Rights Commissioner's Recommendation is, accordingly, amended as above.
The Court so decides.
Signed on behalf of the Labour Court
28th September, 1999.______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.