Labour Court Database __________________________________________________________________________________ File Number: CD86604 Case Number: LCR10870 Section / Act: S20(1) Parties: JOHN OXX LIMITED - and - ITGWU |
Union claim that a worker was unfairly selected for redundancy and that he should be re-instated.
Recommendation:
5. Having considered the submissions of both sides, the Court
does not find that this worker's selection for redundancy was
unfair and does not recommend his re-instatement.
Division: CHAIRMAN Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD86604 THE LABOUR COURT LCR10870
SECTION 20(1) INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR10870
Parties: JOHN OXX
(REPRESENTED BY A SOLICITOR)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Union claim that a worker was unfairly selected for redundancy
and that he should be re-instated.
Background:
2. The worker concerned had been employed since 1979, and, on the
8th July, 1983, was dismissed on the grounds of redundancy. The
Union, however, claimed that he was made redundant solely because
of his trade union activities and referred the matter to a Rights
Commissioner for investigation and recommendation. The Rights
Commissioner, having investigated the matter found that the worker
had not been unfairly dismissed. The matter was then referred to
the Employment Appeals Tribunal which also found against the
worker. This decision was subsequently appealed to the Circuit
Court, where, after a two day hearing, the judge rejected the
worker's appeal and held that he was dismissed for bona fide
redundancy reasons and not because of any trade union activities.
This decision was also appealed, this time to the High Court but
when the case came before the Court it was withdrawn. On the 24th
April, 1986, the Union referred the matter to the Labour Court
under Section 20(1) of the Industrial Relations Act, 1969, and
agreed in writing to be bound by the Court's recommendation. A
Court hearing did not take place until the 6th November, 1986, as
previous dates proved unsuitable to the parties.
Union's arguments:
3. (a) On the date of the worker's redundancy, he was not the
most junior person, his specific job was not declared
redundant nor were his skills, ability or flexibility
detrimental to his continuing service and that the
circumstances constituting his redundancy applied to
others within the employment with less service than he
had.
(b) The worker had set about organising grooms employed by
various trainers on the Curragh in December, 1982. At
that time not one of the trainers applied the correct
terms of the Agricultural workers J.L.C. regulations.
Following initial organisation the Union wrote to each
of the trainers advising them that their employees were
now Union members. This resulted in an immediate
campaign by trainers to coerce their employees to leave
the Union (details supplied to the Court).
(c) The worker was dismissed without notice, was given his
cessor pay and payment in lieu of notice and
immediately let go. The reasons given for his
redundancy have changed on three different occasions.
His first reason (given on 15th September, 1983), was
that the worker was employed as a yardman
and therefore had no skill, no apprenticeship and had
never been asked to ride out. The second defence given
was on the 20th October, 1983 (Rights Commissioner's
hearing), when Mr. Oxx was shown a copy of the RPI form
which cited the claimant as a groom and not a yardman
as had previously been stated. The RPI had been signed
by Mr. Oxx himself. Mr. Oxx then stated that he was
not as experienced in these matters as a Union official
and that his defence was that he had thought about a
system of selection and had consulted with the
Department of Labour who told him that he was right and
that on that basis he had made the claimant redundant
as he was a weak rider, heavy weight and had to have
quiet horses picked out for him.
(d) The third different reason for dismissal came following
the engagement by Mr. Oxx of a solicitor. He now
stated that the claimant was primarily made redundant
with payment in lieu of notice using the selection
criteria of weight, riding ability and not having
served an apprenticeship. However, it is the Union's
view that there was no systematic checking of grooms'
weights within the stable and that when it occurred it
was more fortuitous than deliberate intent and neither
had there been any comment, censor or warning in
respect of riding ability and being overweight prior to
his redundancy.
(e) It is the Union's belief that the claimant was selected
for redundancy on the grounds of his Union activity in
attempting to organise the stable lads on the Curragh.
It is a matter of record that between January, 1983,
and the 8th July, 1983, that John Oxx and the trainers
he represented, used every conceivable means, device
and excuses not to attend the Labour Court (details
supplied). It is also a matter of record that on three
different occasions, Mr. Oxx has given three different
reasons for dismissing the claimant.
Employer's arguments:
4. (i) The case being made by the Union on behalf of the
claimant raises very serious issues both of
jurisdiction and natural justice. The Union is, in
effect, asking the Court to disregard the
investigations and decisions on the case which have
already occurred and been decided on and instead to
make a contrary decision based on a selective summary
of evidence and submissions made on previous occasions.
In effect, the Court is being asked to sit as a Court
of Appeal and to overturn the decision of the Rights
Commissioner, the Employment Appeals Tribunal and the
Circuit and High Courts.
(ii) It is untrue that Mr. Oxx did not apply the correct
terms of the Agricultural Workers JLC Regulations and
no complaint was made against him in the previous
investigations to that effect.
(iii) Mr. Oxx was clearly prepared to recognise and deal with
the Union at all times. As far as attendance at the
Labour Court is concerned, he got only one invitation
to attend. He immediately stated that the date did not
suit him and was agreeable to attend any adjourned
hearing but was never invited or told about a date.
(iv) The Employer totally rejects the arguments made by the
Union regarding the reasons given for the worker's
redundancy. It would be quite impossible for the Court
to decide on two pages of a submission given to it at
the hearing that it should set aside the sworn
testimony of the parties and their witnesses in favour
of a two page summary. These were matters which were
put to the parties and were dealt with in examination
and cross-examination. Furthermore, paragraph two of
the Rights Commissioner's Recommendation clearly shows
that weight and riding ability were matters on which
evidence was given. Mr. Oxx has been consistent all
through in his explanation of the criteria used for
redundancy.
(v) The Union, in bringing this case before the Labour
Court, is asking the Court to decide that the decisions
of the Rights Commissioner Employment Appeals Tribunal,
Circuit Court and High Court, were incorrect and
unjustified. It would be a perversion of natural
justice if that were to be done. There are procedures
for appealing unsatisfactory decisions and these have
been availed of. Appeals must be dealt with either by
way of a fresh hearing of evidence or a transcript of
evidence already given. On that basis it is not
reasonably open to the Court to find that the dismissal
was unfair and following from that there is no basis on
which a recommendation in favour of the worker should
be made. Mr. Oxx has already suffered considerable
hardship by way of expenses in meeting and defending
various claims.
RECOMMENDATION:
5. Having considered the submissions of both sides, the Court
does not find that this worker's selection for redundancy was
unfair and does not recommend his re-instatement.
~
Signed on behalf of the Labour Court
__________________________
John M. Horgan
Chairman.
January, 1987.
D.H./J.C.