Labour Court Database __________________________________________________________________________________ File Number: CD88606 Case Number: AD8859 Section / Act: S13(9) Parties: KING FOODS LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal, by the Union against Rights Commissioner's Recommendation No. B.C. 227/88.
Recommendation:
"In the light of the above and especially in the context of
the inexplicable gap between the accident and the penalty
proposed or indeed between the plea of guilty to a charge of
careless driving and the penalty imposed, I believe it is
unfair on the company's part to dismiss X. However, I do see
that the company has some difficulties in the matter and I do
not propose re-instatement. I recommend that King Foods pay
to X the sum of #7,500 and that this is accepted by him in
full and final settlement of all claims on the company in
relation to the termination of his employment".
On 2nd August, 1988 the Union appealed this recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969, on grounds of insufficient remedy. The Court heard the
appeal on 19th September, 1988.
UNION'S ARGUMENTS:
3. 1. The Union notes and accepts the Rights Commissioner's
contention that the worker was subject to an unfair decision
but is contesting the remedy proposed by him. From the outset
the Union has sought the reinstatement of the worker as a
permanent employee. Had the worker been made redundant he
would have received a greater sum than #7,500. In these
circumstances the Union believes that this sum fall short of
effective compension for an unfair decision to dismiss.
3. 2. The worker did not reject the offer of a job, i.e.
redeployment, but rejected the dismissal and re-employment on
a temporary basis. At the Rights Commissioner's hearing, he
considered the options of a redundancy/severance offer
compared with the option of a casual job and indicated that
only a redundancy settlement, in line with other settlements
in the Company, would go towards compensating him for the loss
of his job.
COMPANY'S ARGUMENTS:
4. 1. Despite the very serious accident in which he was
involved, the claimant subsequently continued to drive at
excessive speeds. He has received warnings about this matter.
The Company has lost confidence in him as a driver and could
not retain him in that capacity. In addition, it cannot
afford to take the risk in relation to possible future
insurance claims and the effect on the insurance premium.
2. The Company considers that its proposal to give the
claimant a reasonable alternative position is fair. This
position would mean virtually uninterrupted employment. The
Rights Commissioner's recommendation for a #7,500 lump sum in
full and final settlement is generous.
DECISION:
5. The Court, having considered the submissions made by the
parties considers that the claimant should have been treated as
being redundant and that he be paid accordingly.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD88606 APPEAL DECISION NO. AD5988
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: KING FOODS LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal, by the Union against Rights Commissioner's
Recommendation No. B.C. 227/88.
BACKGROUND:
2. In February, 1987 one of the Company's permanent drivers was
involved in a serious road accident while driving a Company
vehicle. He had been employed by the Company as a long distance
lorry driver for approximately nine years. A few days after the
accident he returned to work in his usual position. He was
charged with dangerous driving and at a court case some months
later he pleaded guilty to careless driving and was fined #10.
His licence was not endorsed. Subsequently, significant claims
arose from three people who were injured in the accident. One has
been settled for approximately #40,000. The other two claims are
expected by the Company to be substantially in excess of this
figure. As a result of the accident the Company has had to pay an
interim increase in its motor insurance of #35,000 per annum, to
be reviewed in the light of the additional claims. In June, 1988
the Company removed the worker from driving and offered him casual
employment. The Union contends that this is effectively a
decision to dismiss him. (His job has since been given over to a
private contractor). The matter was the subject of a Rights
Commissioner's hearing on 20th June, 1988. The Rights
Commissioner's findings and recommendation were as follows:-
FINDINGS:
Having investigated the matter and having given full and
careful consideration to the points made by both parties, I
have come to the following conclusions:-
1. The impact which X's accident had upon the insurance
premium is a pretty devastating one.
2. I am surprised at the delay that has elapsed between
the accident and the decision to remove X from his
driving duties. A gap of approximately 15 months has
emerged. Even if one confines attention to the gap
between the hearing of the charge against X in the
court and the decision to remove him from driving
activities, one encounters a lapse of approximately 7
to 8 months.
3. An offer of casual employment to a person who
heretofore has been employed for 9 years on a permanent
basis must represent a decision to dismiss.
4. The issue must eventually be construed in the following
light, is a decision to effectively dismiss of King
Foods in all the circumstances a reasonable one and if
it is not a reasonable decision what remedy should be
proposed by me.
RECOMMENDATION:
"In the light of the above and especially in the context of
the inexplicable gap between the accident and the penalty
proposed or indeed between the plea of guilty to a charge of
careless driving and the penalty imposed, I believe it is
unfair on the company's part to dismiss X. However, I do see
that the company has some difficulties in the matter and I do
not propose re-instatement. I recommend that King Foods pay
to X the sum of #7,500 and that this is accepted by him in
full and final settlement of all claims on the company in
relation to the termination of his employment".
On 2nd August, 1988 the Union appealed this recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969, on grounds of insufficient remedy. The Court heard the
appeal on 19th September, 1988.
UNION'S ARGUMENTS:
3. 1. The Union notes and accepts the Rights Commissioner's
contention that the worker was subject to an unfair decision
but is contesting the remedy proposed by him. From the outset
the Union has sought the reinstatement of the worker as a
permanent employee. Had the worker been made redundant he
would have received a greater sum than #7,500. In these
circumstances the Union believes that this sum fall short of
effective compension for an unfair decision to dismiss.
3. 2. The worker did not reject the offer of a job, i.e.
redeployment, but rejected the dismissal and re-employment on
a temporary basis. At the Rights Commissioner's hearing, he
considered the options of a redundancy/severance offer
compared with the option of a casual job and indicated that
only a redundancy settlement, in line with other settlements
in the Company, would go towards compensating him for the loss
of his job.
COMPANY'S ARGUMENTS:
4. 1. Despite the very serious accident in which he was
involved, the claimant subsequently continued to drive at
excessive speeds. He has received warnings about this matter.
The Company has lost confidence in him as a driver and could
not retain him in that capacity. In addition, it cannot
afford to take the risk in relation to possible future
insurance claims and the effect on the insurance premium.
2. The Company considers that its proposal to give the
claimant a reasonable alternative position is fair. This
position would mean virtually uninterrupted employment. The
Rights Commissioner's recommendation for a #7,500 lump sum in
full and final settlement is generous.
DECISION:
5. The Court, having considered the submissions made by the
parties considers that the claimant should have been treated as
being redundant and that he be paid accordingly.
The Court so decides.
~
Signed on behalf of the Labour Court
6th October, 1988 Nicholas Fitzgerald
A.K./U.S. --------------------
Deputy Chairman