Labour Court Database __________________________________________________________________________________ File Number: CD88239 Case Number: AD8827 Section / Act: S13(9) Parties: ROSS LABORATORIES LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION (CAVAN BRANCH |
Appeal by the Company against Rights Commissioner's Recommendation (CW/23/88) concerning the Company's refusal to re-engage a temporary employee.
Recommendation:
7. The Court, having considered the submissions from both
parties, is of the view that the Rights Commissioner's
Recommendation is not unreasonable in the circumstances and
accordingly the Court does not uphold the appeal.
Division: Ms Owens Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD88239 APPEAL DECISION NO. AD2788
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: ROSS LABORATORIES LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION (CAVAN BRANCH)
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation (CW/23/88) concerning the Company's refusal to
re-engage a temporary employee.
BACKGROUND:
2. The worker concerned was initially engaged in the Company on a
one day a week basis as part of an AnCO work experience programme
from the 21st May, 1987, to the 2nd July, 1987. In the summer of
1987 temporary employees were required to provide cover for
holidays and the worker applied for one of these vacancies and was
engaged as a temporary employee under a temporary contract. He
was employed in the packing area of the plant from the 20th July
until the 4th September, 1987, at which date his employment was
terminated in accordance with the terms of his contract.
3. Some weeks later further temporary vacancies arose in the
warehouse for which he was interviewed but not selected.
Following representations on his behalf by his mother, who is a
long serving employee of the Company, he was appointed on a
temporary basis to the warehouse. He worked there until the 23rd
December, 1987 and was let go in accordance with his contract
terms. In January, 1988, further temporary vacancies arose in the
warehouse and he was not offered a position. Representations were
again made on his behalf but the Company confirmed its decision
not to re-engage him. The Union, on his behalf, referred the
matter to a Rights Commissioner for investigation and
recommendation.
4. The Rights Commissioner, having investigated the dispute on
the 26th February, issued the following recommendation on the 4th
March, 1988:
"I recommend that the Union accepts the Company's right of
selection of the most suitable candidates for temporary or
permanent work, however, in the unusual circumstances of this
dispute, I recommend that the Company offer some further
temporary employment to the worker which would be closely
monitored."
This recommendation was not acceptable to the Company which
appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing was held on the
25th April, 1988.
COMPANY'S ARGUMENTS:
5. 1. The worker was employed on a temporary basis for a three
month period from 28th September, 1987 - 23rd December, 1987.
He clearly understood that his employment was temporary and
would end on the 23rd December, 1987. He was let go on 23rd
December, 1987 when his temporary employment ended and was not
given any future positions within the Company.
2. He has been very well treated by the Company. He was
employed in a temporary position for six weeks from 20th July,
1987 to 4th September, 1987. During this period some
deficiencies emerged in respect of his suitability for
employment.
3. However, despite reservations he was appointed to another
temporary position, which arose some weeks later. Prior to
commencing this temporary appointment he was informed by the
Personnel Manager and the Warehouse Manager of the standards
expected in the area of safety, attitude to work and his
relationship with his manager and his fellow workers which had
been problem areas during his previous temporary period with
the Company. He was also advised that despite his previous
problem he was being given one further final opportunity.
4. Despite all of this a number of problems arose which were
discussed with him during his employment by his immediate
supervisor, the Warehouse Manager, who also confirmed these to
him prior to his leaving the Company.
5. The worker has been well treated by the Company. He has
given two spells of temporary employment and overall he was
not considered to be a suitable employee.
6. The Company does not operate a practice of recruiting
temporary and permanent employees on a seniority basis and in
the past the Company has employed people on a temporary basis
who were not subsequently re-employed.
7. Regardless of the above, even if he had been a suitable
employee, it is still the Company's right to recruit employees
temporary or permanent whom it considers most suitable to meet
the Company's requirements.
8. Management totally refutes any suggestion that it added
anything to a document signed by the worker after he had done
an exit interview.
UNION'S ARGUMENTS:
6. 1. The worker concerned was not taken back even though he had
longer service than most of those who were. The reason given
for the refusal to re-engage him was that he was too immature
for industrial employment. Various incidents were cited
against him but none could be sustained by the Company.
2. His first knowledge of the charges against him was when
the Company conducted an "exit" interview - the only such
interview that was ever conducted in the Company. The worker
is only 18 years old and had been the butt of some of the
other workers' practical, jokes (details supplied to the
Court). Following one particular incident he foolishly tried
to cover for the people responsible and was promptly accused
of being a liar.
3. The exit interview was summarised on a two-page form which
the worker signed without realising the implications of his
actions. He also considers that there were a number of
negative comments added by Management after he signed the
form.
4. While he was employed, he was a diligent, hard-working
young man who missed no days nor was he ever late in the
mornings. He was never counselled or warned about his alleged
shortcomings. The Union was never advised of his
unsuitability or of any ongoing problems while he was
employed. Any worker who is considered by Management to be
not meeting required standards, in any respect, should be
clearly informed of that opinion in order to give the person
an opportunity of mending his ways. This applies to all
workers even during probation or temporary periods of
employment.
5. It is noteworthy that in recent years many temporary
workers have gone on to full-time permanent positions in the
Company and there is no reason to believe that the worker
concerned could not also have achieved permanency. An
appraisal by the chargehand in the warehouse found no fault
with his work which suggests that Management had some other
reason for not re-engaging him.
6. The Union accepts that the Company has the right to select
and assess the performance of new employees but contends that
in this instance there has been a serious misjudgement made on
the merits of re-engaging the worker. The Company has made a
major issue out of the request that he should be given another
period of employment and allow the Union to have some input
into the environment in which he would be working.
DECISION:
7. The Court, having considered the submissions from both
parties, is of the view that the Rights Commissioner's
Recommendation is not unreasonable in the circumstances and
accordingly the Court does not uphold the appeal.
~
Signed on behalf of the Labour Court
Evelyn Owens
________________________
13th May, 1988. Deputy Chairman
D.H./J.C.