Labour Court Database __________________________________________________________________________________ File Number: CD86580 Case Number: AD86103 Section / Act: S13(9) Parties: ABS PUMPS LTD. - and - IT&GWU |
Appeal, by the Union, against a Rights Commissioner's Recommendation concerning the re-allocation of a worker.
Recommendation:
"The worker voluntarily resigned his position as Supervisor so
he, and not the Company, is responsible for the consequences
of that decision. It is accepted that his former job is no
longer available so the only alternative for him and for the
Company is that which he has been offered. As his resignation
from the post of supervisor was not of the Company's making
there can be no obligation on them to protect his earnings;
in any event there would want to be very substantial grounds
to justify putting him on a personal rate 22% over the other
Setter/Operators.
Therefore I recommend that he accepts the Company's offer but
that they concede to him ex-gratia a lead-in payment of
#400.00.
An option which he, the Union and Management might consider is
voluntary redundancy".
(The worker was named in the Rights Commissioner's
Recommendation).
On 15th July, 1986 the Union appealed that Recommendation to the
Labour Court in accordance with Section 13(9) of the Industrial
Relations Act 1969. The Court heard the appeal on 22nd October,
1986, in Waterford.
Union's arguments:
5. (i) The worker's resignation was conditional on his being
able to revert to his original position on the terms
of his original contract of employment. The worker
responded to the Company's offer within the time limit
and made it clear that the only two options he was
prepared to consider were either the retention of his
special rate or that he would remain on as Supervisor.
(ii) The worker did not voluntarily seek the position of
Supervisor in the first place. His promotion to
Supervisor was at the Company's initiative and it is
the Company which is responsible for the consequences.
(iii) The ex-gratia payment of #400 recommended by the
Rights Commissioner is totally inadequate. The annual
difference between the normal rate of pay of
Setter/Operator and the personal rate which the worker
had in the past would now be approximately #1500.
(iv) The worker is prepared to take the job offered
provided he is paid his personal rate. This was the
rate on which he was originally recruited.
Company's arguments:
6. (a) The Company cannot offer the worker his former
position as the position he held prior to 1979 evolved
into the Supervisor position which he held after 1979.
The position of Supervisor is currently filled. The
worker had to resign from that position due, to a
large extent, to prolonged absences from work through
sickness.
(b) The Company offers the worker the position of
Setter/Operator, a position that must be subject to
the same terms and conditions of employment as all
other employees holding a similar position.
DECISION:
7. The Court, while upholding the Rights Commissioner's
Recommendation, is of the view that the ex-gratia lead-in payment
should be increased to #600.
The Court so decides.
Division:
Text of Document__________________________________________________________________
CD86580 THE LABOUR COURT AD103/86
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 103 OF 1986
PARTIES: A.B.S. PUMPS
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal, by the Union, against a Rights Commissioner's
Recommendation concerning the re-allocation of a worker.
Background:
2. The worker concerned commenced employment with the Company in
1973 as a Setter/Operator. He was paid a personal rate of pay
which was 15% in excess of the normal rate for the
Setter/Operators.
3. In 1979 the worker was promoted to Supervisor. He held this
position until November, 1985. On 25th November, 1985, the worker
wrote to the Company as follows:-
"I hereby request to terminate my position as Supervisor in
the Moulding Department at the discretion of Management.
I wish to return to my original position as was laid out in
1979 prior to being made Supervisor.
I will continue to be loyal and serve ABS to the best of my
ability".
On 4th December the Company accepted the worker's resignation and
stated it would take effect on 20th December. The Company also
offered the worker a position on the shop floor as Setter/Operator
at the same rate as other workers in that grade. The Company gave
the worker until 11th December to respond to its letter. The
worker replied on 10th December that he would accept the
Setter/Operator's job provided he had the same differential as
when he was originally employed by the Company. The worker also
stated that if he could not be facilitated he would keep his job
as Supervisor. At that stage the only vacancy open for the
worker was that of Setter/Operator at the normal rate.
4. The matter was not resolved through negotiations and was
referred to a Rights Commissioner for investigation and
recommendation. On 27th May, 1986, the Rights Commissioner,
having carried out an investigation, issued the following
Recommendation:-
"The worker voluntarily resigned his position as Supervisor so
he, and not the Company, is responsible for the consequences
of that decision. It is accepted that his former job is no
longer available so the only alternative for him and for the
Company is that which he has been offered. As his resignation
from the post of supervisor was not of the Company's making
there can be no obligation on them to protect his earnings;
in any event there would want to be very substantial grounds
to justify putting him on a personal rate 22% over the other
Setter/Operators.
Therefore I recommend that he accepts the Company's offer but
that they concede to him ex-gratia a lead-in payment of
#400.00.
An option which he, the Union and Management might consider is
voluntary redundancy".
(The worker was named in the Rights Commissioner's
Recommendation).
On 15th July, 1986 the Union appealed that Recommendation to the
Labour Court in accordance with Section 13(9) of the Industrial
Relations Act 1969. The Court heard the appeal on 22nd October,
1986, in Waterford.
Union's arguments:
5. (i) The worker's resignation was conditional on his being
able to revert to his original position on the terms
of his original contract of employment. The worker
responded to the Company's offer within the time limit
and made it clear that the only two options he was
prepared to consider were either the retention of his
special rate or that he would remain on as Supervisor.
(ii) The worker did not voluntarily seek the position of
Supervisor in the first place. His promotion to
Supervisor was at the Company's initiative and it is
the Company which is responsible for the consequences.
(iii) The ex-gratia payment of #400 recommended by the
Rights Commissioner is totally inadequate. The annual
difference between the normal rate of pay of
Setter/Operator and the personal rate which the worker
had in the past would now be approximately #1500.
(iv) The worker is prepared to take the job offered
provided he is paid his personal rate. This was the
rate on which he was originally recruited.
Company's arguments:
6. (a) The Company cannot offer the worker his former
position as the position he held prior to 1979 evolved
into the Supervisor position which he held after 1979.
The position of Supervisor is currently filled. The
worker had to resign from that position due, to a
large extent, to prolonged absences from work through
sickness.
(b) The Company offers the worker the position of
Setter/Operator, a position that must be subject to
the same terms and conditions of employment as all
other employees holding a similar position.
DECISION:
7. The Court, while upholding the Rights Commissioner's
Recommendation, is of the view that the ex-gratia lead-in payment
should be increased to #600.
The Court so decides.
~
Signed on behalf of the Labour Court
18th December, 1986 Nicholas Fitzgerald
T.O'M./P. Deputy Chairman