Labour Court Database __________________________________________________________________________________ File Number: CD88218 Case Number: AD8824 Section / Act: S13(9) Parties: DUBLIN BUS - and - A WORKER |
Appeal by a worker of Rights Commissioner's Recommendation No. CW 4/87 concerning a claim by the worker for an improvement in his seniority status.
Recommendation:
I recommend that the worker's claim is investigated
thoroughly, and that it be conceded, unless it contravenes
clearly established "custom and practice" (on similar facts)
in which case I do not recommend concession of it.
(The worker concerned was mentioned by name in the Rights
Commissioner's Recommendation)."
The Rights Commissioner's Recommendation was rejected by the
worker, who appealed it to the Labour Court under Section 13(9) of
the Industrial Relations Act, 1969. The Court heard the appeal on
21st April, 1988.
WORKER'S ARGUMENTS:
4. 1. The Rights Commissioner posed 2 crucial questions. Was
the worker aware of the terms of custom and practice on his
revision to the conductors grade and if he was, did he make a
conscious election for his conductor seniority. The Rights
Commissioner then says that if the answer to both or either of
these questions is 'no', it could be held that he is not bound
by the terms of the 1981 Agreement. The worker maintains that
he was not aware of any custom/practice on his revision to the
conductor grade. In fact custom/practice supports his case,
since employees prior to 1981, maintained their seniority.
The conductor did not make a conscious election for conductor
seniority, in fact the Company informed him, without
consultation, that he was reverting to his senior conductors
number due to ill health.
2. As he was appointed a regular driver in June, 1980, and
reverted to conducting on health grounds in July, 1980, the
1981 Agreement cannot be applied retrospectively to him.
Therefore, the worker maintains that he is entitled to his
previous driving number, with full seniority, as of September,
1986, when he resumed driving.
3. When he was asked to return to driving to facilitate the
conversion of a route to one person operation (O.P.O.), he
agreed to do so on the understanding that he would receive his
old senior driver's number. If he had not received this
undertaking, he would not have surrendered his conductors
seniority.
4. After he received his old drivers number an unofficial
picket was placed on the garage demanding that his seniority
status be removed. The Company gave in to these unofficial
demands. The arbitrary giving and taking away of a workers
seniority status, affecting his earning potential is contrary
to both good industrial relations practices and the principles
of natural justice.
COMPANY'S ARGUMENTS:
5. 1. The Company and Trade Unions reached agreement in 1981
which established procedures for staff reverting from one
grade to another in order to ensure that an individual could
not have seniority in one grade and retain it in another.
2. The worker concerned reverted to the conducting grade from
driving in 1980 and received a number which restored his
seniority as a conductor. He chose not to apply to revert to
the driving grade until six years had elapsed. He was given a
senior number in error. He was not entitled to be given a
number which would have retained his seniority in the driving
grade.
3. The Company has complied with the Rights Commissioner's
Recommendation in that it did investigate the worker's case
and decided that he could not receive back his senior drivers
number, reflecting seniority to 1980.
4. Other Trade Unions, who were party to the Agreement have
been asked for their views on the matter and while no positive
response has been forthcoming there are definite indications
that they would be totally opposed to any breach of the 1981
Agreement. This was highlighted by their members placing
unofficial pickets when the Company allocated the worker
concerned a senior number after he had reverted back to the
driving.
5. There would be serious repercussive effects from an
industrial relations point of view, should this claim succeed
and significant inter union disputes on this issue and other
similar issues in future could be anticipated, where matters
of seniority are involved.
DECISION:
6. On the basis of the information available to it, the Court
does not consider any departure from the terms of the 1981
Agreement on seniority is warranted in this case. The Court so
decides.
Division: Mr O'Connell Mr Heffernan Mr Walsh
Text of Document__________________________________________________________________
CD88218 DECISION NO. AD2488
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DUBLIN BUS
and
A WORKER
SUBJECT:
1. Appeal by a worker of Rights Commissioner's Recommendation No.
CW 4/87 concerning a claim by the worker for an improvement in his
seniority status.
BACKGROUND:
2. The worker concerned was employed as a temporary bus conductor
in April, 1974 and was appointed to the regular staff in May,
1975. In June, 1980 he was appointed as a regular bus driver
after 9 months as a probationer driver. In July, 1980, he
reverted to conductor duties on health grounds. He was given his
former conductors number at that time, establishing his seniority
in that grade. Being medically fit, he resumed driving duties in
September, 1986 and was given his previous driver's seniority
number. Subsequently he was informed that he would have to lose
his driving seniority on the basis of a 1981 Company/Union
Agreement which says that if a driver reverts back to the
conductor grade and has his previous seniority position restored
to him in that grade, he relinquishes his seniority in the driving
grade. Should he take up a position again as a driver he becomes
the junior man. The worker argued that the 1981 Agreement did not
necessarily relate to him, that at that time i.e. pre-1981
Agreement, one could preserve seniority status, and that other
drivers had benefited from this arrangement.
3. The matter was referred to a Rights Commissioner for
investigation and recommendation. On 20th March, 1987, the Rights
Commissioner issued the following findings and recommendation:
"Findings
It seems to be agreed by both sides that the worker concerned
would have no claim if he had originally reverted to the
conductor grade after the 1981 Agreement, in particular
Paragraph 2. The Company maintained that the Agreement was
being substantially employed prior to 1981. In that case
"custom and practice" could support the Company's position.
One question arises - was he aware of the terms of "custom
and practice" on his reversion to conductor grade? If he was
aware, did he make a conscious election for his conductor
seniority? If the answer is yes to both of these questions I
believe that he has lost any right to the original driving
seniority number (unless there are established exceptions to
the Agreement). If the answer to both or either of these
questions is no, it could be held that he is not bound by the
terms of the 1981 Agreement. It seems to me that any
decision regarding his claim is, in fact, an interpretation
of the 1981 Agreement. Obviously this may have implications
both for the Company and other workers.
Recommendation
I recommend that the worker's claim is investigated
thoroughly, and that it be conceded, unless it contravenes
clearly established "custom and practice" (on similar facts)
in which case I do not recommend concession of it.
(The worker concerned was mentioned by name in the Rights
Commissioner's Recommendation)."
The Rights Commissioner's Recommendation was rejected by the
worker, who appealed it to the Labour Court under Section 13(9) of
the Industrial Relations Act, 1969. The Court heard the appeal on
21st April, 1988.
WORKER'S ARGUMENTS:
4. 1. The Rights Commissioner posed 2 crucial questions. Was
the worker aware of the terms of custom and practice on his
revision to the conductors grade and if he was, did he make a
conscious election for his conductor seniority? The Rights
Commissioner then says that if the answer to both or either of
these questions is 'no', it could be held that he is not bound
by the terms of the 1981 Agreement. The worker maintains that
he was not aware of any custom/practice on his revision to the
conductor grade. In fact custom/practice supports his case,
since employees prior to 1981, maintained their seniority.
The conductor did not make a conscious election for conductor
seniority, in fact the Company informed him, without
consultation, that he was reverting to his senior conductors
number due to ill health.
2. As he was appointed a regular driver in June, 1980, and
reverted to conducting on health grounds in July, 1980, the
1981 Agreement cannot be applied retrospectively to him.
Therefore, the worker maintains that he is entitled to his
previous driving number, with full seniority, as of September,
1986, when he resumed driving.
3. When he was asked to return to driving to facilitate the
conversion of a route to one person operation (O.P.O.), he
agreed to do so on the understanding that he would receive his
old senior driver's number. If he had not received this
undertaking, he would not have surrendered his conductors
seniority.
4. After he received his old drivers number an unofficial
picket was placed on the garage demanding that his seniority
status be removed. The Company gave in to these unofficial
demands. The arbitrary giving and taking away of a workers
seniority status, affecting his earning potential is contrary
to both good industrial relations practices and the principles
of natural justice.
COMPANY'S ARGUMENTS:
5. 1. The Company and Trade Unions reached agreement in 1981
which established procedures for staff reverting from one
grade to another in order to ensure that an individual could
not have seniority in one grade and retain it in another.
2. The worker concerned reverted to the conducting grade from
driving in 1980 and received a number which restored his
seniority as a conductor. He chose not to apply to revert to
the driving grade until six years had elapsed. He was given a
senior number in error. He was not entitled to be given a
number which would have retained his seniority in the driving
grade.
3. The Company has complied with the Rights Commissioner's
Recommendation in that it did investigate the worker's case
and decided that he could not receive back his senior drivers
number, reflecting seniority to 1980.
4. Other Trade Unions, who were party to the Agreement have
been asked for their views on the matter and while no positive
response has been forthcoming there are definite indications
that they would be totally opposed to any breach of the 1981
Agreement. This was highlighted by their members placing
unofficial pickets when the Company allocated the worker
concerned a senior number after he had reverted back to the
driving.
5. There would be serious repercussive effects from an
industrial relations point of view, should this claim succeed
and significant inter union disputes on this issue and other
similar issues in future could be anticipated, where matters
of seniority are involved.
DECISION:
6. On the basis of the information available to it, the Court
does not consider any departure from the terms of the 1981
Agreement on seniority is warranted in this case. The Court so
decides.
~
Signed on behalf of the Labour Court
John O'Connell
___________________________
11th May, 1988. Deputy Chairman
B.O'N/J.C.