Labour Court Database __________________________________________________________________________________ File Number: CD86848 Case Number: LCR10943 Section / Act: S67 Parties: PFIZER CHEMICALS - and - ITGWU |
Claim on behalf of one worker, that the Company either restore him to his former position within the Organic Synthesis Plant (O.S.P.) and compensate him for any losses suffered, or offer him a position in another department with the same wages and conditions.
Recommendation:
5. The Court is satisfied that the transfer from his position as
a shift operator in the O.S.P. area was made by the Company at the
specific and repeated request of the claimant over a number of
years. The manner in which the request for a transfer was
implemented has resulted in a loss of earnings for the claimant.
The Court does not consider there is any basis on which
compensation for this loss should be paid.
In addition, the Court does not consider it would be justified in
recommending that the claimant be restored to his former position
and notes that he is not precluded from applying and being
considered for other shift positions which would allow him to
restore his earnings to their former level.
The Court, accordingly, does not recommend concession of the
Union's claim.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD86848 THE LABOUR COURT LCR10943
CC861694 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR10943
Parties: PFIZER CHEMICAL CORPORATION
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Claim on behalf of one worker, that the Company either restore
him to his former position within the Organic Synthesis Plant
(O.S.P.) and compensate him for any losses suffered, or offer him
a position in another department with the same wages and
conditions.
Background:
2. The worker concerned was employed by the Company since
January, 1979, as a shift process operator and continued to work
in that capacity until September, 1986. During this time he
suffered several accidents at work, most of which were of a minor
nature. However, following an accident in March, 1986, which
resulted in him being out of work for over four months, he
requested a transfer out of the section (he had first requested a
transfer in October, 1983). Between May and August, 1986, he
wrote four letters to the Company expressing his concern for his
safety if he had to return to the O.S.P. section. On the 18th
August, he was offered a temporary position in the O.S.P.
warehouse on daywork. The claimant rejected this offer because it
was temporary in nature, did not include shift work and would
result in a loss of earnings for him. However, on the 18th
September, he was informed by letter that he was being transferred
to this section. The Union, on his behalf claimed that he was
summararily dismissed and sought to have him restored to his
previous position until a more suitable vacancy arose elsewhere.
Local level discussions failed to resolve the issue and on the
14th October, 1986, the Union referred the matter to the
conciliation service of the Labour Court. A conciliation
conference in Cork on the 16th October failed to resolve the issue
and on the 3rd November, the matter was referred to the Labour
Court for investigation and recommendation. A Court hearing took
place in Cork on the 3rd December, 1986.
Union's arguments:
3. (a) Between the 9th May, 1986, and the 11th August, 1986,
the worker wrote four letters to the Company expressing
his genuine concern about his safety. His solicitor
also wrote on his behalf but neither of them ever
received even the courtesy of an acknowlegement to any
of these letters.
(b) The worker was continuously harassed by the Company
throughout the period of his recovery from his accident
in March, 1986. Although attending his own doctor on a
weekly basis and being certified as unfit to return to
work, Management repeatedly requested him to attend a
meeting at the plant to discuss his illness with
unqualified personnel. Management repeatedly arranged
medical appointments with specialists who never even
gave him a medical examination because they claimed
they were not qualified to make a judgement because his
illness was outside their field of speciality.
(c) As a result of his transfer, the claimant will suffer a
reduction of #95.10 per forty hour week. He will also
have his annual leave entitlement reduced by five days
and will suffer substantial financial losses on
potential overtime earnings.
(d) When he returned to work following his accident he
applied for one of three vacancies on shiftwork in the
recovery department but was not even granted an
interview even though he was fully qualified for the
position. There is also a vacancy at present in the
powerhouse for a shift operator but Management refuse
to consider him for this position.
(e) He repeatedly made it clear to the Company that while
he was seeking a transfer out of O.S.P., he would only
accept a similar position which would safeguard his
living standards and lifestyle. Until such a position
becomes available he wishes to return to his job as a
shift operator within O.S.P.
(f) Because of his accident and subsequent removal from
shift work he has already suffered an actual loss in
earnings in excess of #6,000 this year (1986). This is
a direct comparison between his actual earnings and
those of his fellow shift workers in O.S.P. and has put
him under increased pressure to meet his financial
obligations. The Company has added to this pressure by
refusing to defer reducing his shift allowance until
after the issue is resolved by the Court. The Company
has also refused to pay him his shift allowance on
overtime earnings even though an agreement that this
would be paid exists.
(g) The claimant's request for a transfer (which was taken
out of all context) was not even complied with as he is
still in the O.S.P. area. The Company's argument that
if he had another accident and he had not been
transferred then it would be held responsible is not
true. The Company could only be held responsible if it
was proved to be negligent.
Company's arguments:
4. (i) Given the repeated strong demands from the worker, both
direct and indirect, for a transfer, the Management
decision to remove him from his existing duties was
reasonable and appropriate.
(ii) Management could not reasonably be expected to accept
responsibility for allowing a person to continue
working on plant and duties which made him "nervous,"
"anxious" and "terrified." Indeed had Management
failed to act there would be continuing complaints from
the worker, and continuing requests for his transfer
from his job, leading to allegations that the Company
was being remiss in not transferring him.
(iii) His work attitudes and behaviour raised serious
concerns about his own reliability. Management had
little confidence in his future ability to carry out
his duties in the plant safely and efficiently.
(iv) The O.S.P. warehouse was the only area employing
operators within the control of the department which
would remove him from the plant and duties which
caused him so much concern.
(v) The Company not only does not accept, but most
emphatically refutes, his allegations concerning safety
in the plant. The Company gives a high priority to
safety and health considerations and is satisfied that
standards in O.S.P. are of a high order, well within
required specifications and subject to constant check
and review. The claimant's attitude is unreasonable
and exaggerated and the Company will accept no
obligation to transfer him to another department.
(vi) The claimant may apply for vacancies elsewhere on site,
should vacancies arise, and his application will be
considered on its merits. There is no justification,
however, given that the impetus for transfer arose from
his own concerns, for the view that he should be given
preferential consideration for shift employment in
another department regardless of the suitability,
seniority and circumstances of any other candidate.
(vii) When he transferred from shiftwork to daywork, he was
compensated fully in accordance with the terms of his
contract and the Company/Union agreement, which states:
"Where the Company requires a shiftworker, on
completion of one year or more on shifts, to
transfer to daywork, he will be paid an allowance
equal to his shift premium as follows:-
(a) 6 weeks at appropriate shift premium rate,
followed by
(b) 6 weeks at 50% of appropriate shift premium
rate, followed by
(c) 6 weeks at 25% of appropriate shift premium
rate."
(viii) The Company could not ignore the worker's persistent
requests for a transfer based on his fears and
anxieties of operating in the O.S.P. In transferring
him out of production operations, the Company took the
only logical and reasonable decision open to it and
respectfully requests the Labour Court to uphold this
decision.
RECOMMENDATION:
5. The Court is satisfied that the transfer from his position as
a shift operator in the O.S.P. area was made by the Company at the
specific and repeated request of the claimant over a number of
years. The manner in which the request for a transfer was
implemented has resulted in a loss of earnings for the claimant.
The Court does not consider there is any basis on which
compensation for this loss should be paid.
In addition, the Court does not consider it would be justified in
recommending that the claimant be restored to his former position
and notes that he is not precluded from applying and being
considered for other shift positions which would allow him to
restore his earnings to their former level.
The Court, accordingly, does not recommend concession of the
Union's claim.
~
Signed on behalf of the Labour Court
Evelyn Owens
_________________________
Deputy Chairman.
19th January, 1987.
D.H./J.C.