INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
BOS LEISURE LIMITED
(REPRESENTED BY JOHN O'SHEA)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Appeal of a Rights Commissioner's Recommendation No. R-039472-IR-05/JH
2. The Company specialises in fitness and strength-training for women. The worker joined the Company in February, 2005, and was employed to do 18/23 hours per week.
The Company claims that at first the relationship was very positive but that problems soon emerged especially with the worker's time keeping. The Company claims the worker clocked in late 148 times between the time she commenced in February, 2005, and finished in November, 2005. The worker denies this, maintaining that it was 97 "lates". The main problem for the Company came in October, 2005, when it asked the worker to attend on a Saturday morning and she refused. In November, 2005, the worker stated that she would only work a further two of the five Saturdays before Christmas.
The employer spoke with the worker about the problem but was reluctant to give her a written warning. The worker last worked on Saturday, 19th of November, 2005, and she was dismissed three days later.
She referred her case to a Rights Commissioner whose recommendation was as follows:-
"Based on the submissions made and for the reasons set out in the foregoing, I recommend that BOS Leisure Limited t/a Curves Killinarden Tallaght pay the worker the sum of €2,000 compensation of her claim for wrongful dismissal".
The Company appealed the recommendation to the Labour Court on the 3rd of July, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th of October, 2006.
3. 1. The worker denies that she was ever spoken to about her time keeping. Most of the time she was late it was by a few minutes and she frequently had to work beyond her normal finishing time.
2.The worker attended every Saturday up to the 1st of October, 2005. She could not work on the 1st of October due to a family crisis.
3. The worker was unfairly dismissed. She received no warning prior to the dismissal. Her shifts were constantly being changed. She was not offered a contract of employment until shortly before she was dismissed.
4. 1. This was the first business venture that the employer was involved in. She offered the worker concerned a part-time job and held the position for her until she was ready to start.
2. The Company did everything to be as flexible as possible with the worker and, indeed, all employees. Staff were required to be on the premises 10 minutes before the club opened but it quickly became clear that the worker concerned had a serious problem with time keeping.
3. The worker's refusal to work on Saturday, 1st of October, 2005, caused problems for the Company. She was spoken to but the situation continued to deteriorate. When she was given her contract she refused to sign it and said she was planning to leave after Christmas.
The Court has reviewed the Rights Commissioner's Recommendation in light of the submissions made by the parties in their written and oral presentations. The Court is of the view that in the circumstances of this case the conclusions reached by the Rights Commissioner are correct and her Recommendation is reasonable.
Accordingly, the Recommendation is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
17th October, 2006______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.