Labour Court Database __________________________________________________________________________________ File Number: CD8720 Case Number: AD8726 Section / Act: S13(9) Parties: AVENUE CLOTHING - and - MS. SHIELA KAVANAGH |
Appeal by a worker against Rights Commissioner's Recommendation No. BC 143/86 concerning compensation for loss of earnings.
Recommendation:
In the light of the above, I recommend that the worker accept the
offer by the Company to re-commence employment, with full credit
for past service, effective immediately after Christmas, 1986.
(The worker was mentioned by name in the recommendation).
The worker 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.
Worker's arguments:
3. (a) The worker had been employed by the Company for 2.50
years. Whereas all other employees were re-engaged
early in 1986, she was not requested to return.
(b) The worker made a number of phone calls to the Company
informing them that she was in fact available for work.
She was informed by the Company that there was not
enough work, even though her work was being done by
others. The Company maintain that the work that had
been done by the worker concerned is not needed and can
be done by a machine. However, one of the worker's
tasks was to pass the goods and this cannot be done by
a machine.
(c) The worker feels humiliated by the treatment she
received from the Company and feels she was unfairly
discriminated against. She is still unemployed and
believes that compensation for loss of earnings for
1985/1986 is warranted.
Company's argument:
4. (i) Due to the nature of the work, there is usually a
lull in business before Christmas every year. At
this time staff are laid-off for a period. When work
was restarted, the Company was informed that the
worker concerned was ill and therefore not available
for work. Since the job that the worker does is not
needed in the trade and can now be done by machine,
the Company continued production.
(ii) The worker concerned will be given her job back as
soon as production starts again in 1987, with full
credit for past service.
(iii) The Company, due to the poor state of the clothing
industry, are not in a position to pay compensation.
To do so would endanger the continued existance of
the Company.
DECISION:
5. The Court decides that the Rights Commissioner's
recommendation be amended and decides that the claimant be
re-employed with full credit as soon as the Company re-commences
operation. In the meantime she should be paid #100 compensation
in light of the misunderstanding which prevented her employment in
the last season.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD8720 THE LABOUR COURT AD26/87
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 26 OF 1987
PARTIES: AVENUE CLOTHING
AND
A FEMALE WORKER
Subject:
1. Appeal by a worker against Rights Commissioner's
Recommendation No. BC 143/86 concerning compensation for loss of
earnings.
Background:
2. The worker concerned had been employed by the Company from
June, 1983, and in common with other employees was laid-off at
Christmas, 1985. Whereas all other employees were re-engaged
early in 1986, the worker concerned claimed that she was not
requested to return to work. The Company stated that they
understood that she was not available for work due to illness and
this accounts for their failure to contact her. The worker
seeking compensation for loss of earnings during 1985/1986,
referred the matter to a Rights Commissioner for investigation.
On 19th December, 1986, the Rights Commissioner issued the
following findings and recommendation:-
FINDINGS:
Having given careful consideration to the points made by each
party, I have come to the following conclusions.
(i) I believe a genuine mistake did arise with regard to the
perception of Avenue Clothing concerning the availability
of the worker during 1986;
(ii) The worker acknowledges that she had been attending the
doctor but I accept that she was in fact available to
re-commence employment;
(iii) I note the assertion of the Company that the worker's job
is now available to her immediately after Christmas, 1986,
and that full recognition will be given for her past
service;
(iv) Due to the fragile economic base of Avenue Clothing the
question of compensation cannot be confronted by the
Company.
RECOMMENDATION:
In the light of the above, I recommend that the worker accept the
offer by the Company to re-commence employment, with full credit
for past service, effective immediately after Christmas, 1986.
(The worker was mentioned by name in the recommendation).
The worker 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.
Worker's arguments:
3. (a) The worker had been employed by the Company for 2.50
years. Whereas all other employees were re-engaged
early in 1986, she was not requested to return.
(b) The worker made a number of phone calls to the Company
informing them that she was in fact available for work.
She was informed by the Company that there was not
enough work, even though her work was being done by
others. The Company maintain that the work that had
been done by the worker concerned is not needed and can
be done by a machine. However, one of the worker's
tasks was to pass the goods and this cannot be done by
a machine.
(c) The worker feels humiliated by the treatment she
received from the Company and feels she was unfairly
discriminated against. She is still unemployed and
believes that compensation for loss of earnings for
1985/1986 is warranted.
Company's argument:
4. (i) Due to the nature of the work, there is usually a
lull in business before Christmas every year. At
this time staff are laid-off for a period. When work
was restarted, the Company was informed that the
worker concerned was ill and therefore not available
for work. Since the job that the worker does is not
needed in the trade and can now be done by machine,
the Company continued production.
(ii) The worker concerned will be given her job back as
soon as production starts again in 1987, with full
credit for past service.
(iii) The Company, due to the poor state of the clothing
industry, are not in a position to pay compensation.
To do so would endanger the continued existance of
the Company.
DECISION:
5. The Court decides that the Rights Commissioner's
recommendation be amended and decides that the claimant be
re-employed with full credit as soon as the Company re-commences
operation. In the meantime she should be paid #100 compensation
in light of the misunderstanding which prevented her employment in
the last season.
~
Signed on behalf of the Labour Court.
John M Horgan
___________________
16_April,____1987.
B. O'N. / M. F. Chairman.