INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
DONNELLY MIRRORS LIMITED.
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal of Rights Commissioner's Recommendation IR863/00/GF concerning alleged unfair dismissal.
2. The worker concerned commenced employment with the Company on the 14th of September, 1978. In the period 1993 to 1996, the worker was absent from work on sick leave for considerable periods of time. The dispute concerns the question of whether the worker resigned from her position with the Company in January, 1997. The Company's position is that the worker resigned from her position and that she made this clear in conversation with a member of management on the 13th of January, 1997. The Union rejects management's version of the conversation. It argues that management's assertion that she resigned in January, 1997 is not evidenced by any correspondence. The Union accepts that a conversation took place in which the worker indicated to management that she would not be in a position to return to work in the foreseeable future. The dispute was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and Recommendation are as follows:-
"While I accept that the claimant was very ill for a long period, I have come to the conclusion that she did resign her position, although she may not have been fully aware of the consequences of her actions at the time.
I, therefore, recommend in favour to the Company."
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court on the 3rd of October, 2000 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 23rd of January, 2001.
3. 1. The worker did not resign and the Company's assertion that she resigned in 1997 is not evidenced by any correspondence. In its letter of the 9th of March, 1998 a reference is made to the Company's understanding that the worker had resigned as per a telephone conversation.
2. The letter of the 29th of May, 1998, one year and three months after the alleged resignation refers to the Company's 'overlooking' the payment to the worker in respect of outstanding holiday pay. The worker has not received her P45.
3. The worker continued to receive her entitlements under the Company V.H.I. Scheme right up to 1998, proving her continued relationship with the Company both in her perception and in reality.
4. The Company's handling of the case indicates that the worker was considered to be on long term sick leave rather than someone who had terminated her employment. Her position was covered by overtime as is generally the case in situations of long term illness and her position was not filled until May/June, 2000.
5. The worker has been very ill and has had a difficult time over a number of years. Prior to giving birth to her first child she had fourteen uneventful years with the Company. She is improving all the time and given the critical nature of the illness, it is crucially important to her that she has the goal of returning to work when fully fit.
4. 1. The worker clearly resigned from her position with Donnelly Mirrors in conversation with a member of management and this was a clear and reasonable assumption by the Company.
2. The Company was more than fair in its dealings with the worker considering her attendance record and maintained contact with the worker throughout her illness and offered assistance and guidance where necessary. The Company did not put any pressure on her to resign.
3. During this period it is clear from the doctor's reports that she was fit to return to work. She stated to the Rights Commissioner that she is unfit to work. From the time of her resignation in January, 1997, she made no contact with the Company until her letter of April, 1998. Following this there was no further contact until April, 2000.
4. The Company had a clear understanding that the worker resigned in January, 1997, and forwarded various items on benefits and pension entitlements to her. She did not question or dispute the fact that she was no longer an employee of Donnelly Mirrors. The Rights Commissioner has examined and questioned all involved and has come to the conclusion that the worker did resign her position and the Court is requested to uphold this Recommendation.
The Court is satisfied that the Company deemed the claimant's employment to be terminated in 1998. The Court is not satisfied that the claimant did in fact resign in January, 1997, although the Company may well have thought she had.
However, the Court in considering this case is influenced by the lack of normal personnel practice shown by the Company post 1997, when the Company failed to send out her P45, paid her V.H.I. up to mid 1998, and only sent out monies due to her in May, 1998.
The Court taking into account all of the issues in this case, upholds the appeal and awards the claimant £2,000 in compensation.
The Court so decides.
Signed on behalf of the Labour Court
1st February, 2000______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.