Labour Court Database __________________________________________________________________________________ File Number: CD8769 Case Number: AD8721 Section / Act: S13(9) Parties: CIE - and - ITGWU |
Appeal by the Union against Rights Commissioner's Recommendation No. CW155/86 regarding the time of return of a worker after annual leave.
Recommendation:
5. In all the circumstances of the case the Court is of the view
that the Rights Commissioner's recommendation is fair and
reasonable.
The Court accordingly upholds the recommendation and rejects the
appeal.
The Court so decides.
Division: Ms Owens Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD8769 THE LABOUR COURT AD21/87
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 21 OF 1987
PARTIES: CORAS IOMPAIR EIREANN
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. CW155/86 regarding the time of return of a
worker after annual leave.
Background:
2. In 1986, the Company restructured its staff levels at Heuston
Station. This had the effect of making the grade of senior depot
person redundant. The staff of this grade were released under the
Company's severance scheme, with the exception of the worker
concerned, who wished to remain in employment. The worker in his
discussions with the station master, agreed a roster which
provided for working on each alternate Sunday, to check fire
safety equipment.
The worker was given a week's annual leave from Monday, 9th
December, 1985. He indicated to the station master that he would
be resuming the following Sunday, which he would have been working
if he was not on holiday. The Company refused him their agreement
to work that Sunday on the basis that it is the established
practice that, where an employee is given a week's holidays, this
will comprise seven days. Since the holidays commenced on Monday
the following Sunday is included.
The Union, on behalf of the worker, served a claim on the Company
for the loss of earnings and that the worker be allowed to resume
work on Sunday at the end of his leave, where such a Sunday would
be a working one, in accord with the terms of his agreement with
the Company. In order to enable the worker concerned to re-coup
the wages he lost, the Company offered to roster the worker for
one extra Sunday. However, the Company would not agree to the
claim for establishing a right to return to work on the Sunday at
the end of annual leave. As agreement could not be reached
locally, the matter was referred to a Rights Commissioner. An
investigation took place on 21st November, 1986. The Rights
Commissioner issued the following recommendation on 1st December,
1986:-
" I recommend that the worker concerned accepts the Company's
offer in full settlement of this dispute."
(The worker was mentined by name in the recommendation).
On 27th January, 1987, the Union appealed the Rights
Commissioner's recommendation to the Labour Court, under Section
13(9) of the Industrial Relations Act, 1969. A Court hearing took
place on 6th March, 1987.
Union's arguments:
3. (a) The Company in it's determination to secure agreement
on restructuring at Heuston, entered into a local
agreement with the worker concerned. The agreement
provided that every second Sunday would be made
available for work by him. The Company were in breach
of the agreement by not allowing him to start back to
work on the Sunday.
(b) Starting back to work on Sunday at the end of leave is
not unusual in C.I.E., and several staff from other
grades have been facilitated at Heuston and elsewhere.
(c) There would be no extra cost to the Company if
conceded, having regard to the agreement referred to
above.
(d) There is no substance to the Company's contention that
the person relieving the worker concerned for that week
had an entitlement to the Sunday, given that it only
became a working Sunday because of the worker's
agreement with the Company.
Company's arguments:
4. (i) It is established practice that staff take the full
holidays given. To depart from this could give rise
to serious problems, it is a long established
practice, for example, that a relief man, who
replaces an employee on holidays, takes over the
duties and conditions applicable to the roster of
that employee, and this includes a Sunday turn of
duty, if it is included in that roster.
(ii) There is no question of a breach of the agreement
made at the time of the re-organisation. The
relevant part of that agreement was that there would
be no worsening of his conditions. Even if he was
still in his original position, he would have to be
dealt with no differently than he was in this
instance.
(iii) The roster for annual leave was exhibited seven
weeks in advance. The worker could have made an
application to have the date of his week's leave
changed. There is no reason why this would not be
granted.
(iv) In an endeavour to resolve the matter, the worker was
offered an extra Sunday, so that he could re-coup the
wages he would have earned, had he not been on
holidays.
(v) An application was made, by the Union, for payment in
lieu of the Sunday duty lost. The Company believe
that it should not be required, in a case such as
this, to pay for work not done.
DECISION:
5. In all the circumstances of the case the Court is of the view
that the Rights Commissioner's recommendation is fair and
reasonable.
The Court accordingly upholds the recommendation and rejects the
appeal.
The Court so decides.
~
Signed on behalf of the Labour Court.
Evelyn Owens
___________________
6th_April,____1987.
B. O'N. / M. F. Deputy Chairman.