Labour Court Database __________________________________________________________________________________ File Number: CD88728 Case Number: AD8866 Section / Act: S13(9) Parties: CBS BALDOYLE - and - IRISH WOMEN WORKERS BRANCH;FEDERATED WORKERS UNION OF IRELAND |
Appeal by the employer against Rights' Commissioner's Recommendation No. ST93/88 concerning compensation for termination of employment.
Recommendation:
5. The Court does not find adequate grounds for altering the
Rights' Commissioner's Recommendation but decides that it be
implemented in two phases. Half should be paid immediately and
the remainder by 30th June, 1989.
Division: CHAIRMAN Mr Heffernan Mr Devine
Text of Document__________________________________________________________________
CD88728 APPEAL DECISION NO. AD6688
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: CBS BALDOYLE
(Represented by the Federated Union of Employers)
and
IRISH WOMEN WORKERS BRANCH
FEDERATED WORKERS UNION OF IRELAND
SUBJECT:
1. Appeal by the employer against Rights' Commissioner's
Recommendation No. ST93/88 concerning compensation for termination
of employment.
BACKGROUND:
2. The worker was employed by the community as a cook in 1984.
In 1988 the community decided that they did not require a cooks
services to prepare the evening meal. They decided to introduce a
new roster for the worker which would involve a reduction in
working hours but no loss in gross pay. The worker would no
longer be required to work on Sundays and her working hours would
change from evenings to mornings. This was unacceptable to the
worker who continued to work the old arrangements. At a meeting
held in February, 1988 the Union claimed that the new roster would
result in the worker losing her protection and entitlements under
the various acts. The Union suggested that the worker operate the
new hours under protest. This was unacceptable to management.
The worker was absent due to sickness from 16th February, 1988 and
returned to work on 10th March, 1988 on the new hours. On 24th
March, 1988 management informed the worker that she would no
longer be required to work Sundays from 3rd April, 1988. The
worker was offered additional hours on Tuesdays but this was
refused. At the time she was working on Mondays and Thursdays
from 10.00 a.m. to 2.00 p.m. Further discussions took place and
on 26th April, 1988 the Union served strike notice on the
community which took effect from 4th May, 1988. The picket was
withdrawn to allow a Rights Commissioner to investigate the
dispute. A Rights Commissioner investigated the matter on 14th
May, 1988 and recommended that the new roster be accepted without
the worker suffering any disadvantage and that the parties
negotiate a severance settlement. Discussions subsequently took
place on such a package and management made an offer of #672.40
based on the formula used in a previous case for a worker with
four and a half years service. This was unacceptable to the Union
which sought #1,376 for a wage increase due, holidays, loss of
pay, and suspension plus a compensatory sum for enforced loss of
employment (approximately #2,000). As no agreement could be
reached, the matter was referred to the Rights' Commissioner for
investigation and recommendation. The Rights' Commissioner
investigated the dispute on 29th August, 1988 and issued the
following recommendation:-
"I do not share the view that this is a similar case to
the previous case. I recommend that the claimant
receives #1,500 in full and final settlement of all her
claims both statutory and at common law arising out of
the termination of her employment arising out of the
re-organisation of services.
I further recommend that she receives a suitable
written testimonial regarding her service as a cleaner
and cook."
On 23rd September, 1988 the community appealed the recommendation
to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal on 21st October,
1988.
UNION'S ARGUMENTS:
3. 1. This issue has directly been the subject of two Rights'
Commissioner's investigations. The worker did not and still
does not wish to leave this employment however she decided to
accept the terms of the Right's Commissioner's recommendation
arising from the May, 1988 investigation. The Rights
Commissioner involved in both that and the August, 1988
investigation was very familiar with the background to this
case and made his recommendation based on his judgement of the
facts. It is management that wishes to terminate this
worker's employment and they should be willing to compensate
her adequately for the loss of her employment and the very
real prospect that she will not achieve further employment, at
least in the near future.
2. Management have made no effort to negotiate and resolve
the situation and have firmly maintained its position that the
amount paid to this worker should be based on the same formula
used in another worker's case. The community has acknowledged
that the worker's performance was satisfactory and her work
was never criticised by members of the community. The worker
has not yet received a reference as discussed or a P45 and
this has caused a delay to the worker in seeking other
employment and obtaining unemployment benefit. The Court
should uphold the decision of the Right's Commissioner and the
worker should receive #1,500 and a reference.
COMPANY'S ARGUMENTS:
4. 1. In their submission to the Rights' Commissioner the
Union claimed that the termination of this worker's employment
was not her responsibility and that she wished to remain in
the employment of the community on the basis that her
conditions of employment did not worsen. It is clear from the
Rights' Commissioner's Recommendation from the May, 1988
investigation that the worker's position was not worsening and
it is also management's belief that this Recommendation
vindicated their offer of the new roster.
2. At the Rights' Commissioner's hearing held in August,
1988 the Union claimed compensation based on a number of
factors. Three of these, a wage increase due, holidays and
suspension are not applicable. The other factors were
redundancy compensation for loss of employment and loss of pay
from 4th May, 1988 to 29th August, 1988, a large element of
the Union's claim was based on the latter. Management has no
responsibility for loss of earnings as a result of the dispute
which arose. Their position was justified in the first Rights
Commissioner's Recommendation.
3. Management accepts that redundancy compensation is
applicable but does not accept that this case warrants a
higher payment than made in a previous case which was based on
a formula of 2.5 weeks per year of service, paid in two
phases. The community is experiencing financial difficulties
and the payment of any amount of compensation will create
difficulty. A reference and P45 will be issued to the worker.
The Court should, therefore, recommend the payment of #672.40
as compensation for the termination of this worker's
employment.
DECISION:
5. The Court does not find adequate grounds for altering the
Rights' Commissioner's Recommendation but decides that it be
implemented in two phases. Half should be paid immediately and
the remainder by 30th June, 1989.
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Signed on behalf of the Labour Court
John M Horgan
11th November, 1988 ----------------
U.M./U.S. Chairman