INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9); INDUSTRIAL RELATIONS ACT; 1969
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES(IRL) LIMITED)
Chairman: Ms Jenkinson
Employer Member: Mr McHenry
Worker Member: Ms Ni Mhurchu
1. Appeal by the Company against Rights Commisioners Recommendation IR457/00/JH.
2. The appeal concerns a worker who was employed by the Company from the 5th October, 1999 to the 25th January, 2000. She was employed as Chef Manager originally and later by agreement as Chef de Partie. Her salary was £16,000 per annum plus shift allowance. The worker was ill and out of work for three days from the Wednesday before her alleged dismissal. She contacted the Company by phone to report her illness and also obtained a doctor's certificate. As she lived in an isolated area , her husband (who also worked on site as a Chef de Partie)stayed out of work with her. On Monday 24th January, 2000 the employee returned to work. She claims that she was sent home and told to report the following day. On Tuesday she had a meeting with the Site Manager (with whom she had no previous dealings). He asked for a history of her employment with the Company and then, according to the worker, informed her that she was being dismissed due to lack of qualifications. The worker referred the issue to a Rights Commissioner for investigation. The Rights Commissioner investigated the dispute on the 11th May, 2000. The Company did not attend the hearing claiming that it did not receive notification of the date. On the 12th May, 2000 the Rights Commissioner issued her recommendation as follows:
"On the basis of the circumstances and the uncontested evidence of the worker, I find that this is a case of unfair dismissal. The worker is to receive £1,500 compensation in full and final settlement of her claim for unfair dismissal."
(The worker was named in the Rights Commissioner's recommendation).
On the 30th May, 2000 the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 25th August, 2000.
4. 1. Although the worker was originally employed as a Chef Manager, she was unable to carry out the duties of that position and it was agreed that she would move to the position of Chef de Partie. She was not asked to take a reduction in wages. Her Chef Manager reported that while she was in that post, the worker was not up to the standards appropriate to a worker in that post.
2. A new Site Manager was appointed in January. The worker was on sick leave at the time. He made contact with her through her husband to attend a meeting to discuss her performance as Chef de Partie. The Site Manager had no dealings with the worker because she had been absent from work through illness. This was one of the problems which was experienced with the worker who also continually failed to notify the Company properly of her absences and on occasions not even attending to work when she should have been.
3. The purpose of the meeting was to establish her current state of health and also the current circumstances regarding her position in the Company. The Site Manager had been told that the worker had taken on a job which she was not capable of handling and subsequently taken on another position which he was now told she was having difficulty in carrying out. He was under a lot of pressure to ensure that he had the proper staff working in the appropriate areas. Therefore, it was important that he had an opportunity to talk to the worker to get her side of the story.
4. When the Site Manager eventually presented his understanding of the situation regarding her abilities, the worker immediately became abusive and walked out of the building. The Site Manager did not terminate the worker's employment. At this stage the worker was still out sick and the Site Manager was only involved in discussions with her regarding the information he had received so he could fully evaluate the situation before making any decision. At no time did the Company attempt to dismiss the worker.
5. The worker was on probation. The Company has a right to evaluate a worker, and from the information which the Company had in addition to her behaviour at the meeting, the Company suggests that even if she had not been dismissed, there was every possibility that her employment was going to be terminated as she appeared to be unsuitable for the position for which she was employed. The Company may well have considered employing her in a position more suitable to her skills but she was not interested in that, and made this quite clear by her own statements at the meeting.
3. 1. While the worker was in the post of Chef Manager she was told by Management that an employee from Head Office would be out to the site to explain the units, gp targets and the procedures for invoices, staff training, functions, computer input etc, however no one came. None of the staff were trained and no uniforms or safety shoes were issued to the staff or the claimant. No chemical, manual handling or safety training was given, nor were any fire drills done. When an incident occurred on the site and the worker went to get the accident book to write up a report, there was none. The worker tried her best to make good the situation but
without the Company's back-up it was an impossible task. The worker decided to step down as Chef Manager with Management agreement. She retained her wage and shift allowance. The Company later asked the worker to take a cut in wages.
2. During the period of the worker's employment she was never advised that her work performance was in any way unsatisfactory.
3. When the worker was informed that she was being dismissed for being unqualified, she requested a statement in writing to that effect. The worker was told that it would be forwarded with her P45, however, the P45 arrived on the 10th February, 2000 without the letter of explanation. The P45 details were incorrect and an amended one was sent on the 20th March, 2000 still without the letter of dismissal. The worker subsequently had difficulty obtaining alternative employment without a written explanation from the Company as to why she was dismissed.
4. The worker was nonplussed and demoralised at the Company's decision as she had all the required qualifications and certificates. She was treated in an unjust fashion and was unfairly dismissed without notice.
The Court is satisfied that on the basis of the information presented to it, which was not available to the Rights Commissioner,that the claimant was not dismissed, and that she did in fact decide to terminate her own employment. However, the Court was quite concerned as to the manner in which the company dealt with the situation and therefore recommends that the Rights Commissioner's recommendation should be amended. The Court recommends that a payment of £500 should be paid.
The Rights Commissioner's recommendation is hereby amended accordingly.
Signed on behalf of the Labour Court
14 September, 2000______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.