INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SOUTH WESTERN AREA HEALTH BOARD
- AND -
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)
Chairman: Mr Duffy
Employer Member: Mr Carberry
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Recommendation IR4878/01FL.
2. The worker was employed by the Health Board as agency relief staff on 15th September 2000. He was employed as a Relief Child Care Worker. The union alleged that he was unfairly dismissed on the 28th March 2001 and the Health Board refute this.
The matter was referred to a Right Commissioner for investigation and recommendation. The Rights Commissioner’s recommendation is as follows:-
- “I recommend that claimant be re-instated, with effect from the date of his dismissal and until the end of his contract. He is to be paid as if he had worked for that period. In addition, the employer is to pay the claimant €5,000 in respect of the damage that was caused to his well being and reputation by the unfair dismissal. Any record of his purported dismissal is to be expunged from his personnel file”.
- On 28th of February 2002 the Health Board 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 5th of June, 2002
3. 1. The worker's actions on the day he was dismissed were of a far more serious nature than that of a “misdemeanour” as described by the Rights Commissioner.
2. The conduct of the worker was most improper in the unit concerned or in any workplace. 3. The worker did not seek to have the meeting deferred until representation was secured.
4. The right of appeal was afforded to the worker.
5. Management, in their professional capacity, deemed the worker's actions to be serious enough to warrant dismissal.
4. 1. The worker was dismissed without just cause or without having been afforded due process, natural justice, appropriate notice, an opportunity for representation and breach of his contract. 2. The worker was not given an opportunity to appeal the decision to dismiss him.
3. Management had at both informal sessions and during supervision, indicated their satisfaction with the worker’s dedication and ability to work with children in need of high support.
4. The worker expected to be made a permanent member of staff.
The Court has given careful consideration to the submissions made by the parties to this appeal.
The Court accepts that the procedures followed by the Board in reaching its decision to dismiss the claimant fell short of what would be expected of a reasonable employer. On this basis alone the claimant's dismissal was unfair. Moreover, on the facts of the case, the Court cannot accept that there was any reasonable basis on which the Board could have concluded that the claimant was guilty of such gross misconduct as to warrant summary dismissal.
In the circumstances, the Court determines that the claimant should be reinstated to the post which he occupied immediately prior to his dismissal without loss of pay. The Court further determines that the claimant be offered a further contract for a period of three months, which should be regarded as a probationary period.
The record of the dismissal should be expunged from the claimant's record.
Having determined that the appropriate redress in this case is reinstatement without loss of pay, the Court does not consider it appropriate to make a further award of compensation. The Court does not, therefore, uphold that part of the Rights Commissioner's Recommendation awarding the claimant compensation in the amount of €5,000.
The Rights Commissioner's Recommendation is amended accordingly.
Signed on behalf of the Labour Court
11th June, 2002______________________
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.