Labour Court Database __________________________________________________________________________________ File Number: CD88388 Case Number: AD8839 Section / Act: S13(9) Parties: BRIGGS AMASCO LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union against Rights Commissioner's Recommendation CM/17,854 concerning a claim for compensation for loss of earnings by a worker during alleged unnecessary lay-off.
Recommendation:
6. The Court has considered the submissions of the parties.
Having regard to circumstances which applied when this incident
occurred, the Court takes the view that the Company did not act
unreasonably with regard to the application of the seniority rule.
The Court therefore is of the opinion that the Rights
Commissioner's Recommendation should stand.
The Court so decides.
Division: Mr O'Connell Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
CD88388 APPEAL DECISION NO. AD3988
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BRIGGS AMASCO LIMITED
(REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation CM/17,854 concerning a claim for compensation for
loss of earnings by a worker during alleged unnecessary lay-off.
BACKGROUND:
2. In January, 1987 the appellant had a heart attack while
working on one of the Company's sites. He was subsequently out of
work until May, 1987. When he returned on the 5th May, 1987, he
was not re-engaged because of lack of work. Further lay-offs
followed on the 8th May when four employees were let go and on the
15th May another four were laid-off. This left the Company with
three felters employed. The Union, on behalf of the appellant,
claimed that he should have been retained from the 8th May because
he was one of the Company's most senior operatives and had more
service than two of the three employees who were kept on. It
sought compensation for loss of earnings from the time he was laid
off until he was re-employed on the 15th June, 1987. This was
rejected by the Company and as local discussions failed to resolve
the issue, it was referred to a Rights Commissioner for
investigation and recommendation.
3. The Rights Commissioner, having investigated the dispute on
the 29th July, 1987, issued the following recommendation on the
31st July:
"In not taking him back sooner the Company was not in breach
of any agreement and their decision did not in any way alter
the existing principles of seniority. Indeed had they taken
him back on the 5th May they would have had to let another
worker go and this could have been impractical because of the
nature of the business and would certainly have been unfair
to the other person, particularly as the claimant had been
away for so long.
Consequently he is not entitled to compensation."
(The claimant was mentioned by name in the Rights Commissioner's
Recommendation).
This recommendation was not acceptable to the Union which appealed
it to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969, on the 16th May, 1988. A Court hearing was
held on the 16th June, 1988.
UNION'S ARGUMENTS:
4. 1. In late April, the appellant went to the Company premises
and informed one of the managers that he would be back at work
the following week. When he presented himself for work he was
told that he could not start until the Company got further
clearance from his doctor, even though he had already
submitted a medical certificate stating that he was fit for
work.
2. Two of the employees retained had less service than the
appellant which is in breach of the Agreement existing in the
Company regarding the method of selection for lay-off, i.e.
seniority.
COMPANY'S ARGUMENTS:
5. 1. Last in, first out, as applied in the Company, is not a
hard and fast rule. This was found by a Rights Commissioner
in a previous case (CW 326/84, copy supplied to the Court).
The understanding which the Company has with the Union is that
when lay-offs are necessary, as they frequently are because of
the highly volatile nature of the Company's work supply,
selections will be made on the basis of seniority. Likewise,
vacancies are filled from workers on lay-off in order of
seniority.
2. The Company did not select the appellant for lay-off in
any normal sense of the word. When he returned from sick
leave on the 5th May, 1987, there was no work available for
him, i.e. there were no vacancies in the workforce. Further
lay-offs took place on the 8th and 15th May which left only
three employees working. The appellant had more service than
two of these. It would be neither fair nor practical to adopt
the Union's suggestion that an employee returning from sick
leave, or any kind of absence, should displace an employee
already at work.
DECISION:
6. The Court has considered the submissions of the parties.
Having regard to circumstances which applied when this incident
occurred, the Court takes the view that the Company did not act
unreasonably with regard to the application of the seniority rule.
The Court therefore is of the opinion that the Rights
Commissioner's Recommendation should stand.
The Court so decides.
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Signed on behalf of the Labour Court
John O'Connell
__________________
13th July, 1988. Deputy Chairman
D.H./J.C.