Labour Court Database __________________________________________________________________________________ File Number: CD88107 Case Number: LCR11776 Section / Act: S20(1) Parties: ARTANE SERVICE STATION LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Dispute concerning the non-payment of compensation to a worker.
Recommendation:
9. The Court, having considered the submissions made by the
parties, is satisfied that the claimant was still an employee of
the Company at the time of the change-over and as such she should
be appropriately compensated in accordance with the terms of the
Agreement.
Division: Mr Fitzgerald Mr Collins Mr O'Murchu
Text of Document__________________________________________________________________
CD88107 RECOMMENDATION NO. LCR11776
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20
PARTIES: ARTANE SERVICE STATION LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Dispute concerning the non-payment of compensation to a
worker.
BACKGROUND:
2. The Company is a retail subsidiary of ESSO Teoranta with
responsibility for about fifty service stations throughout the
country with approximately half located in the Dublin area.
3. In July, 1987, the Company announced that it intended changing
over its service stations from a direct run to an agency
arrangement. The Company indicated that the workers concerned
would not be affected except that instead of being employees of
ESSO they would now be employees of the respective agents.
4. There were a number of meetings held between the Company and
the Union which resulted in an Agreement concerning (a) the
continued employment and protection of the pay and conditions of
the workers concerned and (b) payment of compensation because of
the change-over (details supplied to the Court). The change over
to agency operation took place on the 21st October, 1987.
5. In November, 1987, the Union claimed compensation in
accordance with the Agreement on behalf of the worker concerned
who was employed at Violet Hill Service Station, Glasnevin, and
who had been absent on sick leave since the 7th January, 1987.
The Company rejected the claim on the basis that the worker was
not covered by the terms of the Agreement as she was not on the
Company payroll since February, 1987.
6. The Union referred the matter to the Conciliation Service of
the Labour Court. The Company declined an invitation to attend a
Conciliation Conference. The Union then referred the matter to
the Labour Court for investigation and recommendation under
Section 20(1) of the Industrial Relations Act, 1969. A Court
hearing was held on 8th March, 1988.
UNION'S ARGUMENTS:
7. 1. The worker concerned had been out sick for a period of 14
months. She has recently been cleared fit to return to work.
On her return she will be an employee of an agent and not of
ESSO.
2. In his letter of 29th January, the General Manager refers
to the discussions that took place on the formula for
calculating earnings/hours, and the agreement that it would
refer to the period 1st April, to 30th September, 1987. The
Union does not dispute this but points out that no discussion
took place regarding any person who might have been out sick.
The Union was not made aware that there was any employee out
ill for the period referred to in this case. Therefore, it
is not accepted that this omission on the Company's part
gives the Company any right to later suggest that a person
out sick, whose employment had not been terminated, would be
regarded other than as an established employee.
COMPANY'S ARGUMENTS:
8. 1. It was agreed with the Union that full-time staff working
over 35 hours per week would receive £200 per year of service
and that to qualify for this payment all staff would be
assessed on the number of hours worked in the 26 weeks
commencing the 4th April, 1987, to the end of September,
1987.
2. The worker concerned has not been on the payroll since
February, 1987, and the Company is not obliged to pay her
compensation as she is prevented by ill health or injury from
performing her duties of employment.
RECOMMENDATION:
9. The Court, having considered the submissions made by the
parties, is satisfied that the claimant was still an employee of
the Company at the time of the change-over and as such she should
be appropriately compensated in accordance with the terms of the
Agreement.
~
Signed on behalf of the Labour Court
7th April, 1988 Nicholas Fitzgerald
M.D./P.W. Deputy Chairman