AD9866

FULL RECOMMENDATION CD/98/313 APPEAL DECISIONNO.AD9866 (1354/97) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CARLOW WORKMAN'S CLUB - AND - A WORKER DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. 1354/97 concerning alleged unfair dismissal.





BACKGROUND:

2. The worker concerned commenced employment with the Carlow Workman's Club in April, 1996 as bar manager. His employment which was in a temporary capacity was terminated on the 15th of October, 1996. The worker claimed that he had been unfairly dismissed and referred the matter to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-

"I consider that a dismissal did take place. It is apparent that
the worker did not receive his terms of employment in writing.
This is an offence, and had he done so, this dispute might have
been avoided. I am satisfied that the manner of the dismissal was
unfair. It is not clear to me that there were clear lines of responsibility
or that the worker was aware that his job was in jeopardy. I have
no doubt that the dismissal could have been done fairly if it had been
approached in a different way. I also consider that the worker may have
contributed to the dismissal.

I recommend that the Club offers and the worker accepts £380 in
settlement of this dispute."

The worker was named in the recommendation.


The Rights Commissioner's recommendation was appealed by the Club to the Labour Court on the 1st of July, 1998 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Carlow on the 8th of September, 1998.



WORKER'S ARGUMENTS:

3. 1. The worker rejects management's accusation that he resigned his position as bar manager. The circumstances under which he was dismissed were unfair. He was made the scapegoat for poor management and a poor accounting system.

2. Stock-check records in recent years show that the Club has a history of problems regarding stock. The worker requested on a number of occasions that an independent stock-check be carried out.

3. The worker received no complaints from management regarding his work performance. He is concerned that his dismissal has damaged his reputation and will effect his employment prospects in the future.



CLUB'S ARGUMENTS:

4. 1. The worker was negligent in his duty. On two occasions he left the Club unattended during which time drink was stolen from the premises.

2. The worker failed to maintain the Club in a proper manner despite management's request for him to do so.

3. Management presented the worker with the results of stock-checks which showed substantial short-falls. He indicated that he had no problem with the way the stock-checks had been carried out. He accepted that he was responsible for the stock and tendered his resignation.




DECISION:

The Court considered the written and oral submissions made by the parties and the further information supplied on request by the employer.

Having considered all the information before it, the Court finds that a dismissal did take place, and that the dismissal was unfair.

Given the controls in position and the working arrangements in the organisation, the Court is of the view that there is no way this employee could be held responsible for the trading difficulties.

The Court rejects the appeal and having considered all aspects of this case believes the award should be £1,000.


The Court, therefore, rejects the appeal and amends the Rights Commissioner's recommendation accordingly.

The Court so decides.




Signed on behalf of the Labour Court



Finbarr Flood
16th November, 1998______________________
F.B./D.T.Chairman



NOTE

Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.