FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FINSA FOREST PRODUCTS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioners Recommendation Ir36611/05/MR.
BACKGROUND:
2. The worker was employed by the Company on the 20th of September, 2004, as a general operative. The terms of the Company / Union agreement provides for an initial probationary period of three months, although the worker's contract of employment allowed for a 9-month probationary period. The Company's case is that the worker's employment was terminated on the 22nd of March, 2005, due to unsuccessful completion of that probationary period. The Company cited unauthorised absence and punctuality as reasons for the dismissal. The worker believes that he was guaranteed nine months probation and that he was unlawfully dismissed.
The case was referred to a Rights Commissioner who recommendation was as follows:-
"In the circumstances, I recommend that Finsa Forest Products Ltd should now agree, on a once-off and "without precedent" basis, to pay the worker an ex gratia lump sum of €750. For his part, the worker should accept this payment in full and final settlement of all matters in dispute between himself and the Company".
Both parties appealed the recommendation, the worker on the 3rd of February, 2006, and the Company on the 8th of March, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th of November, 2006, in Limerick.
WORKER'S ARGUMENTS:
3. 1. The Company did not afford the worker the opportunity to have representation at the hearing. He was unable to get work for two years due to being dismissed by the Company.
2. The worker was not allowed to carry out his duties to the best of his abilities.
3. The worker was promised that he would have a 9-month probationary period. Had he been allowed to work for the nine months he would have been happy to have left the Company. As it was his dismissal was unlawful.
COMPANY'S ARGUMENTS:
4. 1. The problems with the worker began shortly after he was employed. In November, 2004, he was issued with a warning with regard to an unauthorised absence in October, 2004.The warning also cited general punctuality issues including a lateness of 1 hour, 36 minutes. The worker offered no explanation for his lateness or absence.
2. At a meeting on the 7th of December, 2004, the worker was again warned about issues relating to lateness and absences. The worker was told that the Company was unhappy with his general performance.
3. The Company extended the 3-month probationary period, as per the Company /Union agreement, to give the worker the opportunity to demonstrate that he was a suitable candidate for full time employment.
4. On 16th March, 2005, an overall review of the worker's probationary period was held. He was informed that his 6-month probationary period was not successful and a decision had been made to terminate his employment.
5. The Rights Commissioner found that"the Company's dismissal of the worker in these circumstances was not unfair".
(The worker was named in the above recommendation).
DECISION:
Having considered the views of the parties expressed in their oral and written submissions, the Court is of the view that the disciplinary procedures adopted by the Company were appropriate in the circumstances, carried out in accordance with Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000 and conveyed management’s view that the claimant’s employment was in jeopardy.
Consequently, the Court is of the view that the dismissal was not unfair. Furthermore, the Court does not concur with the Rights Commissioner’s findings that there was confusion over the claimant’s probationary period. The Court is satisfied that the details of his probationary period were clearly stated in the contract of employment, which the claimant signed at the commencement of his employment and these details were made clear to him at all stages of the disciplinary process. Therefore, the Court does not accept that he should be paid an ex-gratia sum of €750 as recommended by the Rights Commissioner.
Accordingly, the Court overturns the Rights Commissioner’s recommendation, upholds the Company’s appeal and rejects the worker's appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
27th November, 2006______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.