INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
FARRELL BROS (ARDEE) LTD
(REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION)
- AND -
(REPRESENTED BY BUILDING AND ALLIED TRADES UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr O'Neill
1. Appeal Against Rights Commissioner's Recommendation IR6194/01/JH.
2. The worker was employed as a general operative by Farrell Brothers (Ardee) Ltd from the 22nd of January, 2001, until the 22nd of September, 2001. He worked a probationary period of six months and then worked on a week-to-week basis until his employment was terminated. The Union believe that he was unfairly dismissed while the Company believe that it did all in its power to continue the worker's employment.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner concluded that
"With regard to (the worker) I am satisfied that while the company did not adequately follow procedures in this case, nonetheless he contributed to the actions of (the respondent) by his own underperformance in the company and this conclusion must be taken into account in awarding any compensation to him."
His recommendation issued on the 18th of February, 2002, as follows:-
“On the basis of the submissions made at the hearing and taking into account my own conclusions as set out above I recommend that (the worker) should receive
€1,700 in settlement of his claim for alleged unfair dismissal.”
(The worker and respondent were named in the Rights Commissioner’s recommendation).
The Company appealed the recommendation to the Labour Court on the 4th of March, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place in Dundalk on the 27th of June, 2002, the earliest date suitable to both parties.
3. 1. The worker had received verbal warnings regarding his performance.
2. The Company was busy but the worker did not make himself available for overtime. He worked overtime with another employer.
3. As the worker’s overall performance did not meet the standard required, he was employed on a week-to-week basis at the end of his probation.
4. Management believed that a warning and placement on a week-to-week basis would help the worker to focus on his work.
4. 1. The worker did not receive a verbal warning.
2. There are no written notices supporting oral warnings.
3. The Company issued a letter on completion of the probation period stating that they could not offer a permanent job at the moment. They did not mention any dissatisfaction with the worker’s performance.
4. The Company did not dismiss the worker at the end of the probationary period.
5. The worker undertook to seek work elsewhere as it was his understanding that there was currently no permanent job for him.
6. The issue of refusing to work overtime was never raised with the worker.
7. When the worker worked overtime for someone else, there is only speculation by the Company that any overtime was available.
The Court has given consideration to both the written and oral submissions of both parties. Having examined the procedures used in the termination of employment, the Court is not satisfied that the employer formally complied with the requirements set down in his own procedures. Therefore, the Court upholds the findings and recommendation of the Rights Commissioner. The appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
8th July, 2002______________________
Enquiries concerning this Decision should be addressed to Caroline Hayes, Court Secretary.