INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
E. BYRNE & SONS LIMITED.
- AND -
(REPRESENTED BY MANDATE)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR2687/00/GF.
2. The Company is a long-established trading group in the Licensed Vintners Association (LVA) and employs a total of 220 staff. The worker was employed as a senior bar person in the Jolly Toper in March, 2000. He claims that he was unfairly dismissed in September, 2000. The Company claims that the worker was dismissed for clear breach of procedures in relation to the LVA/Union sick pay scheme.
The worker returned from annual leave on the 18th of August, 2000. He discovered that he was not on a roster (due to start on Saturday 19th) and was told to report to the Director of Personnel on the 21st of June. At the meeting, the Union claims, the Director suggested that the worker might have taken money from the till. The worker was not offered Union representation. He was told to go home until he was contacted.
The Union protested at the manner in which the worker was treated and claimed that the Director could not remember why the worker was suspended. Following a second meeting on the 25th of August, the Union claims that the worker was distressed and went to his GP. He was diagnosed as suffering from depression and was certified as unfit for work. On the 21st of September, whilst on sick leave, the worker received a letter from the Managing Director terminating his employment. He also received his P45, dated the 18th of September.
The Company's case is that the worker did not supply a "sick note", dated the 15th of September, until the 21st of September. (There was disagreement at the hearing as to the exact number of days the worker was on sick leave).
The dispute was referred to a Rights Commissioner and his findings and decision are as follows:-
While I accept the employer made a convincing case, I cannot ignore the fact that the relevant sections of the - "Agreement on employment and disciplinary procedures in the Dublin licensed trade" - were largely ignored. Therefore, I decide in favour of the claimant and recommend that he be compensated by payment of one months salary, a total of £1614.60 (2050.12 Euros).
The Company appealed the decision to the Labour Court on the 16th of January, 2000, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 27th of June, 2001.
3. 1. The manner in which an employer may discipline an employee is set out in Sections 6 and 7 of the Agreement on Employment and Disciplinary Procedures in the Dublin Licensed Trade. The Company did not follow these procedures in this case.
2. The Company issued a written warning to the worker on the 16th of July which did not state "further repetition will result in dismissal." This is a clear breach of Section 7(5).
3. The worker was treated in a most unfair manner. It resulted in him suffering from depression, something he had not suffered from previously.
4. The worker was dismissed whilst on certified sick leave.
4. 1. The LVA/Union sick pay scheme states "an employee must notify the employer as soon as possible on the first day of illness and supply him with a medical certificate within 3 days." The worker did not supply a medical certificate until 6 days after going on sick leave. This was the main reason that he was dismissed. He already had a large number of days sick leave in just 6 months' employment.
2. The worker was temperamentally unsuited to work in a busy licensed outlet. He had been given verbal and written warnings about his behaviour and absences.
The Court has considered the appeal of the Rights Commissioner's recommendation. When terminating the employment of the worker, the Court is satisfied that the Company did not abide by the procedures as laid out in the LVA "Agreement on Employment and Disciplinary Procedures in the Dublin Licensed Trade." Consequently, the Court upholds the Rights Commissioner's recommendation. The appeal is disallowed.
The Court so decides.
Signed on behalf of the Labour Court
16th July, 2001______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.