Labour Court Database __________________________________________________________________________________ File Number: CD88657 Case Number: AD8864 Section / Act: S13(9) Parties: BUTTERCRUST LIMITED - and - THE BAKERY AND FOOD WORKERS AMALGAMATED UNION |
Appeal by the Union, on behalf of a worker, against Rights Commissioner's Recommendation No. ST370/80 concerning compensation for loss of earnings.
Recommendation:
5. The Court does not find adequate grounds for altering the
Rights Commissioner's recommendation and decides that it be
upheld.
Division: CHAIRMAN Mr Heffernan Mr Devine
Text of Document__________________________________________________________________
CD88657 DECISION NO. AD6488
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: BUTTERCRUST LIMITED
(Represented by the Federated Union of Employers)
and
THE BAKERY AND FOOD WORKERS AMALGAMATED UNION
SUBJECT:
1. Appeal by the Union, on behalf of a worker, against Rights
Commissioner's Recommendation No. ST370/80 concerning compensation
for loss of earnings.
BACKGROUND:
2. The worker was employed by Joseph Downes & Son Ltd for ten and
a half years until 31st October, 1987 when it went into
receivership and all the workers were made redundant. Buttercrust
Limited was formed and started trading on 1st November, 1987.
This Company employed a number of workers, including this one, who
had worked in the previous bakery for a six month trial period.
During this worker's probationary period she was absent from work
for 62 of the 105 working days and the Company issued her with
dismissal notice to expire on 15th April, 1988. The Union
referred the matter to a Rights Commissioner for investigation and
recommendation. A Rights Commissioner investigated the dispute on
8th April, 1988 and recommended that the worker complete her
probationary period by having it extended by 62 days. This was
accepted by both parties. However, the worker was not returned to
her duties as a packer on the bundy line which she had carried out
both before she was made redundant and during her initial
probationary period in this Company and the Union requested a
clarification from the Rights Commissioner, who stated that it was
his intention that she would return to her normal duties. The
Company refused to return her to these duties and the Union
referred a claim for loss of overtime earnings to the Rights
Commissioner. The Rights Commissioner investigated the dispute on
12th July, 1988 and issued the following recommendation:-
"If the claimant had not been missing from her work during
her probation then this claim and the previous case would
not have arisen.
I consider a claim of #2,250 by a probationer for work
already done on overtime by another Union member to be
outlandish.
The Company in my view erred in not outlining the grounds
upon which it would accept her back for an extended
probationary period. Therefore the Claimant had the
expectation of high earnings on overtime. In consideration
of this circumstance alone, I recommend that the claimant
receives #400 severance pay in full and final settlement of
all her claims, both legal and at common law, arising out of
her employment on extended probation, should she be
dismissed upon the conclusion of the probation, which now
seems likely."
This recommendation was rejected by both parties. The worker was
subsequently dismissed by the Company. On 11th August, 1988 the
Union appealed the recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 14th October, 1988 (the earliest date suitable
to the parties).
UNION'S ARGUMENTS:
3. 1. The worker provided a good and honest service for over
ten and a half years, while employed by the previous Company
and was unfortunate that she became ill while on her
probationary period in this Company. During her absence on
sick leave she was always covered by medical certificates from
her own doctor and from the hospital she was attending. The
Company has been biased against this worker compared to others
and has treated her in a most unfair manner.
2. The Company did not comply with the Rights Commissioner's
recommendation by returning the worker to her normal duties
for the extra 62 days and had decided to dismiss the worker
irrespective of her performance during that period. As a
result the worker experienced a substantial loss of earnings
amounting to #2,250 and has also lost her job. In addition,
the Company has refused to give the worker reasons in writing
for her dismissal. In all the circumstances, the worker is
entitled to compensation for her loss of earnings and her
dismissal.
COMPANY'S ARGUMENTS:
4. 1. The Company were completely within their rights to
terminate the worker's employment due to her high level of
absenteeism (59%) during the trial period. The availability
of workers was crucial to the Company particularly during its
start up period and full flexibility operated within the
Company. The Company was entitled and in the circumstances
had no alternative but to place the worker on duties where
absenteeism would cause the least inconvenience for the period
of her extra probationary period.
2. The worker who remained on the bundy line had in fact
spent a longer period of time on it due to this worker's
absenteeism and it is quite likely that a claim would have
been made for that worker if she had been moved in favour of
the claimant. The loss of overtime which the worker has
claimed was not a gain to the Company as another worker
received it. There are no grounds for paying this worker any
compensation for loss of overtime.
DECISION:
5. The Court does not find adequate grounds for altering the
Rights Commissioner's recommendation and decides that it be
upheld.
~
Signed on behalf of the Labour Court
John M. Horgan
----------------
28th October, 1988.
U.M./U.S. Chairman