Labour Court Database __________________________________________________________________________________ File Number: CD87419 Case Number: LCR11351 Section / Act: S67 Parties: TECH INDUSTRIES LTD - and - ITGWU |
Dispute concerning the rate of pay and date of re-employment of a worker.
Recommendation:
6. The Court accepts that there is commercial reasons for the
Company's inability to restore the claimant to his former position
and rate of pay. The Court recommends that in accordance with the
spirit of the Rights Commissioner's recommendation and previous
Court determination, the Company appoint the claimant to fill the
first vacancy of "setter" or equivalent with the appropriate rate
of pay.
Division: Ms Owens Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD87419 THE LABOUR COURT LCR11351
CC861973 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR11351
Parties: TECH INDUSTRIES LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Dispute concerning the rate of pay and date of re-employment
of a worker.
Background:
2. The worker concerned was dismissed by the Company on 2nd
December, 1985, for physically assaulting another worker (details
of the incident were supplied to the Court). The Company agreed
to defer the dismissal pending an investigation of the matter by a
Rights Commissioner who recommended as follows:-
"The Union are making an appeal on purely compassionate
grounds and their attitude to his misconduct is well
stated. There is no mitigating factor whatever in his
favour other than that appeal which is touching and
compelling. On that account I recommend leniency but
on these conditions:-
(i) The dismissal to be effective but the worker to
be re-engaged, that is as a new employee, from
3rd March, 1986.
(ii) He would serve the normal probationary period but
he would also be on a permanent final warning
that any act of violence or other such grave
misconduct will incur automatic dismissal.
(iii) If he is still in the employment on 1st March,
1987 with a satisfactory record the Company to
restore to him his previous service and seniority
but without compensating him for any earnings
lost as a result of the dismissal.
(iv) The Union to bring to the attention of their
members in the employment that the plea made for
the worker this time could not be used again if
any of them were to be in similar trouble."
The Union appealed this recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969, and in
AD-33-86 the Court decided as follows:-
"The Court upholds the Rights Commissioner's
recommendation except in relation to the date from
which the appellant should be re-employed.
The Court accordingly rejects the appeal and amends the
date of the 3rd March, 1986, in the Rights
Commissioner's recommendation to the 1st April, 1986.
The Court so decides."
3. However, the worker concerned was not re-employed until the
18th August, 1986, because the Company claimed it had no work for
him because of market conditions. When he did return to work, he
was put on 'racking/unracking,' whereas before he had operated as
a 'setter.' This meant that he was on a rate of #30 per week
basic lower than he enjoyed in his old position. The Union lodged
a claim for compensation for the worker's delayed re-employment in
addition to him being restored to his old rate of pay. This was
rejected by Management and as no local level agreement could be
reached the matter was referred to the conciliation service of the
Labour Court on the 20th November, 1986. A conciliation
conference on the 6th February, 1987, failed to resolve the
dispute and on the 21st May, the matter was referred to the Labour
Court for investigation and recommendation. A Court hearing was
held in Waterford on the 22nd July, 1987.
Union's arguments:
4. (a) Despite repeated requests from the Union, the Company
refused to re-employ the worker concerned until
mid-August, 1986. This delay represented a nett
financial loss to him of about #1,500. The Company
claimed that it had no work for him at this time. This
is rejected by the Union which claims that any
short-time working was purely on a voluntary basis and
that the claimant should have been re-employed from the
1st April and should have been treated in exactly the
same manner as all other employees.
(b) When he was eventually re-engaged he was employed on
the line, on the lowest paid job in the factory which
carried a rate of #30 less than his former rate. He
also had no opportunity to do overtime in this new
area.
(c) The Union is of the view that while the Labour Court
decision was that he be re-engaged as a new employee it
was not intended that he be further penalised through
such a substantial fall in his earnings (approximately
#3,500 to-date). Accepting that there was no
entitlement to compensation for the period of his
dismissal, i.e. up to the 1st April, 1986, there is no
doubt that from the 1st March, 1987, he should have
been restored to his former position with his previous
rate of pay and any other entitlement normally
applicable.
(d) The Court is asked to find that the Company treated the
claimant injustly in applying penalties over and above
those decided as appropriate by the Court and that he
be compensated for his losses to-date arising from this
injust treatment and that he be reinstated to his
former position with effect from the 1st March, 1987.
Company's arguments:
5. (a) The Union claimed that the claimant should have been in
receipt of a 'setters' rate. The Company is in total
opposition to this claim. He has worked on different
jobs since August, 1986, ('racking' and hanging') and
has always been paid the appropriate rate.
Furthermore, he was taken back in the racking
department on request from the Union that the first
available position be open to him.
(b) While the Company accepts the Labour Court's Decision
neither that nor the Rights Commissioner's
Recommendation makes any reference to rate of pay. The
Rights Commissioner's Recommendation states that on
completion of a period of employment to 1st March, 1987
he should be restored to "his previous service and
seniority."
(c) The Unfair Dismissals Act of 1977 provides the
definition of re-engagement as it is commonly used and
understood in both a legal and an industrial relations
context, and refers to (in Section 7 (1) (b))
"re-engagement by the employer of the employee either
in the position which he held immediately before his
dismissal or in a different position which would be
reasonably suitable for him on such terms and
conditions as are reasonable having regard to all
the circumstances."
(d) The Company has implemented the terms of the Rights
Commissioner's Recommendation and the Appeal Decision
of the Court. The fact that the claimant was on
lay-off until August was caused by the commercial
situation which also affected other employees. No
compensatory payment was made to any employee who was
on lay-off.
(e) The Company has no greater obligation to him than to
any of its employees - to pay at the rate appropriate
to the job (as agreed with the Union).
(f) In all the circumstances it would be impossible to
justify to the Company and more particularly to other
employees that he should be paid anything other than
the rate for the job.
(g) Essentially, the claim is a demand for preferential
conditions of employment for the claimant over and
above those available to other employees. Clearly the
Company cannot concede.
RECOMMENDATION:
6. The Court accepts that there is commercial reasons for the
Company's inability to restore the claimant to his former position
and rate of pay. The Court recommends that in accordance with the
spirit of the Rights Commissioner's recommendation and previous
Court determination, the Company appoint the claimant to fill the
first vacancy of "setter" or equivalent with the appropriate rate
of pay.
~
Signed on behalf of the Labour Court
Evelyn Owens
________________________
Deputy Chairman
5th August, 1987
D.H./J.C.