Labour Court Database __________________________________________________________________________________ File Number: CD88735 Case Number: AD8865 Section / Act: S13(9) Parties: I S VARIAN AND COMPANY LIMITED - and - FEDERATED WORKERS UNION OF IRELAND |
Appeal against a Rights Commissioner's Recommendation concerning: (a) re-instatement and compensation to a worker, (b) retrospection of service pay.
Recommendation:
9. The Court has carefully considered the basis of the Union's
appeal but does not find adequate grounds for altering the Rights
Commissioner's Recommendations and decides that they be upheld.
Division: CHAIRMAN Mr Heffernan Mr Devine
Text of Document__________________________________________________________________
CD88735 APPEAL DECISION NO. AD6588
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: I S VARIAN AND COMPANY LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
FEDERATED WORKERS UNION OF IRELAND
SUBJECT:
1. Appeal against a Rights Commissioner's Recommendation
concerning:
(a) re-instatement and compensation to a worker,
(b) retrospection of service pay.
GENERAL BACKGROUND:
2. The Union served claims on the Company in relation to both
issues in January, 1988. No agreement could be reached and the
matters were referred to a Rights Commissioner for investigation
and recommendation. A Rights Commissioner investigated the claims
on 20th July, 1988. On 27th September, 1988, the Union appealed
the recommendations to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
21st October, 1988.
Claim (a) Re-instatement and compensation to a worker
BACKGROUND:
3. In 1987 the worker was removed from the pool of machine
operators in the Company, following her refusal to accept a
written warning. A Rights Commissioner investigated the matter on
17th June, 1987 and recommended that she be restored to machine
duties from 24th June, 1987, without compensation. This
recommendation was accepted by both parties. In July, 1987 the
Company again removed the worker from the pool of operators on the
basis that she had been involved in a number of incidents of
general misconduct. In January, 1988 the Union served a claim for
the immediate re-instatement of the worker to the pool of
operators and compensation of #750 for her loss over the year.
This was rejected and the matter was referred to a Rights
Commissioner who made the following recommendation:
"I recommend that the Company restores the worker to machine
duties with immediate effect."
(The worker was mentioned by name in the Recommendation).
UNION'S ARGUMENTS:
4. 1. The normal disciplinary arrangement has been for the
Company to suspend workers from employment for serious
offences or to issue warnings for less serious offences. No
other worker has ever been removed from a particular work duty
as a form of disciplinary action and it is unfair to treat
this worker in such a manner.
2. The Company has repeatedly removed this worker from the pool
of operators without any just cause. Each time the matter is
referred to the Rights Commissioners' Service or the Labour
Court and the worker is subsequently re-instated but without
compensation. As a result the Company has been able to
continually remove the worker without it suffering any
penalty. This is an unfair arrangement for the Company to
continue and it should compensate the worker for the unfair
and highly discriminatory form of disciplinary action the
Company has taken.
COMPANY'S ARGUMENTS:
5. 1. The worker has consistently breached Company rules. In
1984 she was removed for a period of time from the pool of
operators due to a high level of absenteeism. In 1986 she was
given three verbal warnings for careless/bad workmanship,
followed by a written warning in March, 1987 which she refused
to accept and arising from which she was removed from machine
operator duties. In July, 1988 the Company was again forced
to discipline the worker by removing her from the pool of
operators.
2. Considering her past record and experience with the
Company, the worker would have been aware of the implications
of her misconduct. The Company is justified in taking this
type of disciplinary action against the worker in view of her
consistent breach of Company rules. There is no merit in the
worker's claim for compensation and her actual wage loss was
marginal.
Claim (b) retrospection of service pay
BACKGROUND:
6. The worker has been employed on canteen and cleaning duties in
the Company since 1972 and works a forty hour week. Service pay
in the Company is paid at the rate of 50p after five years
increasing every five years up to a maximum of #2.00 which is
reached after twenty years' service. In January, 1988 the Union
served a claim on the Company for the introduction of service pay
to this worker, together with ten years retrospection (#300). The
Company offered to include her in the service pay scheme from
January, 1988. This was unacceptable to the Union and the matter
was referred to a Rights Commissioner who recommended:
"I recommend the Company offers, and the worker accepts, the
sum of #100 for all retrospection, and that her appropriate
service pay is implemented from week-beginning Monday 1st
August, 1988."
(The worker was mentioned by name in the Recommendation).
UNION'S ARGUMENTS:
7. 1. The arrangement in the Company is that every hourly paid
worker receives service pay. There is no justification or
logical reason for not paying this worker service pay, it is
the Union's belief that her exclusion from the scheme was an
oversight on the Company's part, and it is reprehensible of
the Company not to have resolved the situation when the
opportunity arose.
2. The worker is entitled to the payment of service pay from
the time at which she had five years service with the Company.
The issue cannot be resolved by the payment of token
compensation and the application of the service pay
arrangement from a current date. The worker is entitled to be
paid in line with her years of service in the Company and
should be treated the same as any other worker in the Company.
COMPANY'S ARGUMENTS:
8. 1. During negotiations on the 26th wage round the Company
conceded a special increase of 12.5% to this worker compared
to an increase of 4% for the other workers. During these
negotiations reference was never made by either the Union or
worker to the introduction of service pay.
2. The Company has never paid service pay to any worker in
the canteen. Canteen rates of pay are not even listed with
established Company rates as they do not form part of the
relevant Joint Labour Committee which is the basis for rates
of pay in the Company. The Company's initial offer to include
the worker in the service pay scheme from January, 1988 was
very generous in the circumstances. In line with this the
worker should be included in the scheme with effect from the
date of the Court's recommendation.
DECISION:
9. The Court has carefully considered the basis of the Union's
appeal but does not find adequate grounds for altering the Rights
Commissioner's Recommendations and decides that they be upheld.
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Signed on behalf of the Labour Court
John M. Horgan
----------------
9th November, 1988. Chairman
U.M./J.C.