Labour Court Database __________________________________________________________________________________ File Number: CD88217 Case Number: AD8820 Section / Act: S13(9) Parties: MERCHANTS WAREHOUSING LIMITED - and - AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION |
Appeal, by the Company, against Rights Commissioners Recommendation B.C. 219/87 concerning payment in lieu of holidays.
Recommendation:
5. The Court having considered the submissions from both parties
finds no evidence which would justify altering the Rights
Commissioner's recommendation.
The Court accordingly upholds the recommendation and rejects the
Company's appeal.
Division: Ms Owens Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD88217 APPEAL DECISION NO. AD2088
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: MERCHANTS WAREHOUSING LIMITED
(REPRESENTED BY THE FEDERATED WORKERS' UNION OF EMPLOYERS)
and
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal, by the Company, against Rights Commissioners
Recommendation B.C. 219/87 concerning payment in lieu of holidays.
BACKGROUND:
2. This appeal concerns a worker who was employed by the Company
for twenty eight years the last twelve of which he was employed as
Assistant Manager in the Silo. In October, 1987 the Silo was sold
to R & H Hall and the worker transferred to that company. At the
date of transfer to R & H Hall the worker had 29 days annual leave
outstanding to him. The Union claimed that the Company should pay
the worker the value of the outstanding 29 days annual leave which
was £1,673. The Company rejected the claim. No agreement was
reached through local negotiations and the matter was referred to
a Rights Commissioner for investigation and recommendation. On
25th February, 1988 the Rights Commissioner issued his
recommendation as follows:
"In the light of the above it is my recommendation that
Merchant Warehousing should pay to the worker the sum of
£1,673 in lieu of holidays outstanding to him at the time of
transfer of the business to R & H Hall".
(The worker was named in the Rights Commissioner's
recommendation).
On 14th March, 1988 the Company appealed the Rights Commissioner's
recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
20th April, 1988.
COMPANY'S ARGUMENTS:
3. 1. Annual leave was not denied to the worker over the years
in question. It was the worker's responsibility to organise
his leave arrangements. If the worker had brought the matter
to managements attention he certainly would have been
facilitated in taking his leave. It is not accurate to
suggest that activity in the Silo was too great to allow for
holidays, as there were many occasions when the Silo was not
busy and leave could quite easily have been taken.
3. 2. Bearing in mind the worker's senior position and the
flexible approach to the organisation of leave at that level,
the responsibility fell to the worker to ensure that
arrangements were made.
3. Paragraph 3(b) of the Company/Union agreement states as
follows:
"all leave must be taken within the calendar year in which
it is due but in exceptional cases this may be extended to
end of January of the following year".
4. New majority shareholders are in site at the Company and
concern has been expressed that an award has been made against
the Company in a situation where it is felt that the greater
responsibility lay on the worker to make adequate leave
arrangements.
UNION'S ARGUMENTS:
4. 1. In his position as Assistant Manager in the Silo, the
worker's holidays had to be taken by arrangement with other
members of the staff to allow the Silo to operate all year
round. On occasions he had to alter his holiday arrangements
by postponing or bringing them forward to facilitate the peaks
and troughs of the business.
2. Many times over the years the worker had responded to
requests from Management to return to work from holidays, and
because of this he always carried some holidays over into the
following year. The Company never raised any objection to
this. The Company never saw fit to quote the Agreement and
insist that the worker take his holidays in accordance with
its terms. Instead it wisely allowed the practice to
continue, a practice which was beneficial to them.
3. Using the Agreement to save the expense of paying the
worker his properly earned holiday pay is grossly unfair to
him, and it was an abuse of the arrangements that had been
allowed to go on for so long. Had the Company not sold the
Silo it would have wanted the arrangement to continue.
4. The worker is not responsible for what happened. He had
no real alternative but to transfer to the new employer, and
the least he was entitled to from his employer of 28 years was
that they would not try to cheat him out of his just holiday
pay.
DECISION:
5. The Court having considered the submissions from both parties
finds no evidence which would justify altering the Rights
Commissioner's recommendation.
The Court accordingly upholds the recommendation and rejects the
Company's appeal.
~
Signed on behalf of the Labour Court
Evelyn Owens
___________________
__29th__April, 1988. Deputy Chairman
T.O'M/J.C.