INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(MC CANN FITZGERALD SOLICITORS)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Pierce
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Recommendation No IR4498/01GF.
2. The worker was employed by the Company in Waterford, as a Supervisor on the 12th of June, 2000. The Company's Plant is engaged in a process involving the extraction of pig plasma which is then sent to their Wrexham plant for processing. The worker was engaged initially on the basis of a 6 month probationary period. On the 4th of December, 2000, the worker was advised that the probationary period was to be extended for a further 3 months.
On the 9th of February, 2001, the worker was informed by management that an investigation into irregularities was taking place and that he was being placed on a period of suspension on full pay. The suspension continued on full pay until the 18th of April, 2001. On the 18th of April, 2001, the worker was advised that the Company had taken a decision to terminate his employment. The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's recommendation is as follows:-
"I note that the claimant was in receipt of his contract of employment. I have given the evidence careful consideration and I am satisfied that the Company have adhered to fair procedures and in the circumstances I have decided the dismissal was not unfair, therefore, I recommend in favour of the employer".
On the 12th of October, 2001, the Union appealed the Rights Commissioner's recommendation to the Labour Court under Section 13(9) of the Industrial Relations Act 1969. The Court investigated the complaint on the 1st of May, 2002, in Waterford.
3. 1. The worker did send a letter of appeal to the Managing Director of the Company after he was suspended.
2. The worker could not recruit staff directly as he did not have the authority to hire staff or to offer contracts of employment.
3. The week the worker was suspended he was short 3 people on site and had requested additional staff.
4. The worker spent most of his time on the factory floor.
5. Giving staff time-for-time is normal practice in this type of employment.
4. 1. The Company has adhered rigorously to fair procedures in all its dealings with the worker.
2. The Company's investigation and subsequent disciplinary hearing and decision to dismiss, fully accord with the Labour Relations Commission Code of Practice on Grievance and Disciplinary Procedures Order 2000.
3. The worker's performance throughout his probationary period did not meet the standards required of a supervisor.
4. The worker did not appeal the decision.
Having considered the written and oral submissions of the parties, the Court is of the view that there is not enough evidence to justify the attitude taken by the Company in dismissing the employee for gross misconduct. This significant lack of uncorroborated evidence, coupled with no suggestion of personal gain to the appellant, should not, in the Court's view have lead to dismissal for gross misconduct. Therefore, the Court is of the view that while the Company may not have been satisfied with his performance, he should have been given the benefit of doubt.
The Court recommends that a compensatory payment of €1,500 should be paid for the distress caused.
The Rights Commissioner's Recommendation is, therefore, overturned and the appeal succeeds.
The Court so decides.
Signed on behalf of the Labour Court
5th June, 2002______________________
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.