INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SMYTHS TOYS SUPERSTORE
- AND -
(REPRESENTED BY STEEN O ' REILLY SOLICITORS)
Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Mr McCarthy
1. Appeal of Rights Commissioner Recommendation No: r-151733-Ir-14/JT
2. This case is an appeal by the worker of Rights Commissioner Recommendation No: r-151733-Ir-14/JT. The issue concerns the dismissal of the worker for refusing to sign a new contract of employment. Management's position is that it initially applied an incorrect premium rate for hours worked after midnight. It contends that it rectified the error and issued new contracts to all affected workers to be signed and accepted. It further contends that it had no option but to dismiss the worker for failing to sign the new contract. The worker's position is that he had a clear understanding of the premium rates that would apply and Management should not have reduced the rates unilaterally. The worker contends that his dismissal for not accepting the new contract was unfair.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 18th May 2015 and did not find in favour of the worker's claim on the basis that Management had a right to correct its error and apply the appropriate premium rates.
On the 26th June 2015 the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act,1969. A Labour Court hearing took place on 1st December 2015.
3 1 Management, on recruitment, provided a contract to the worker including the relevant premium rates that would apply. The worker was subsequently paid less than his contractual rate. Management then issued a new contract to the worker for signing. The worker was dissatisfied with the unilateral reduction in his premium pay and did not sign the new contract. He was then dismissed without being allowed an appeal or representation. In all the circumstances the worker considers that he was unfairly dismissed.
4 1 Management accepted that the worker was advised incorrectly in relation to the premium rate to be applied. When the error was identified Management sought to issue a new contract. Despite being given time to consider his position, the worker refused to sign the new contract. In the circumstances Management considers that it acted reasonably and had no option but to dismiss the worker from his employment.
The Court has carefully considered the submissions of the parties and the points made at the hearing.
The Court understands that certain information was given to the appellant at the point of his recruitment which was erroneous. The Court does not consider it unreasonable that in those circumstances the appellant should have accepted the right of the respondent to correct that error.
It is clear to the Court that the appellant would have benefitted significantly from the availability of representation at the meetings which led to the termination of his employment. Similarly the availability of an appeal opportunity would have been of benefit. The Company has confirmed that normal practice is to allow representation and to facilitate appeals. This normal practice was not followed in this case.
The Court recommends that, taking all of the circumstances of this case into account and in particular the lack of availability of representation or appeal, the respondent should pay to the appellant a sum of €1,000 in full and final settlement of all claims.
Signed on behalf of the Labour Court
21st December 2015______________________
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.