Labour Court Database __________________________________________________________________________________ File Number: CD88754 Case Number: LCR12257 Section / Act: S20(1) Parties: ERIN PEATS LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Dispute concerning the termination of employment of a worker.
Recommendation:
5. The Court recommends that the worker concerned be favourably
considered for the next suitable temporary vacancy which arises in
the Company.
Division: Mr O'Connell Mr Collins Mr Devine
Text of Document__________________________________________________________________
CD88754 RECOMMENDATION NO. LCR12257
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 20(1)
PARTIES: ERIN PEATS LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Dispute concerning the termination of employment of a worker.
BACKGROUND:
2. The employee concerned has worked as a temporary baling
operative with the Company since 1982. His job mainly entailed
the packaging and loading of full bales of peat moss on to
pallets. In November, 1987 the Company notified all its temporary
baling department employees that as a result of re-organisation it
was necessary to terminate the two shift baling operation as and
from 8th November, 1987. All baling thereafter was being done on
day work and the Company advised all temporary employees that
their employment would be terminated, in November, 1987. However
temporary staff were advised by the Company that there was a
possibility of some alternative full time work in 'pot production'
and a number of appointments would be made in this area. Seven
extra staff would be required to man a three shift cycle as
follows:-
1 Quality Control Person, 3 Production Assistants, 3 Packers
(permanent nights).
The Union was in agreement with the Company proposal as the offer
envisaged increased employment, and strongly advised the Company
to retain the temporary staff (of which the worker was one of the
most senior) about to be laid off in the baling plant. The
Company received internal and external applications as well as six
applications from the temporary staff. Interviews were held but
the worker was not successful in his application for one of the
production assistant posts. The Union claims that the employee
was unfairly treated in that his employment was being terminated
whilst one of the posts was being filled by an outsider. The
Company rejected this allegation stating that the selection of
permanent employees was a Company decision based on the
suitability of an employee for a particular job. The dispute was
unable to be resolved in various local discussions, and following
industrial action by the other employees at the plant in support
of the worker the dispute was referred to a Rights Commissioner
for investigation and recommendation in February, 1988. The
Rights Commissioner accepted that the Company was correct in its
decision regarding permanent appointments and recommended that the
worker be considered for any future temporary vacancies. The
Union accepted the recommendation in respect of permanent
appointments and that the Compnay consider the worker for
temporary employment. The Company terminated the worker's
employment in April, 1988 and were unwilling to attend a Union
request for a further Rights Commissioner's hearing in relation to
the worker's prospects for future seasonal vacancies. On the 28th
September, 1988, the Union referred the dispute to the Labour
Court for investigation and recommendation under Section 20(1) of
the Industrial Relations Act, 1969. A Court hearing took place in
Tullamore on the 17th January, 1989.
UNION'S ARGUMENTS:
3. 1. The Union has been involved in discussions with the
Company since April, 1986 on the question of the worker's
position in relation to temporary seasonal employment. The
worker was offered seasonal work that year (1986) but because
of a domestic problem he was unable to take up the Company's
offer. This situation was explained to the Company and the
worker was given to understand that his claim to future
employment would not be affected. The Union met the Company
representatives in September, 1986 on the issue of temporary
employment and an offer was put to the Company that an
agreement should be negotiated including all temporary staff
who would be listed for employment on a seniority basis. The
worker would have accumulated most service and was therefore
most senior. The Company rejected this offer. However, three
days later he was offered temporary work, which he accepted.
This was due to the Union's representations on his behalf.
Management stated the work offered, was only on a week to week
basis and did not reflect seniority.
2. When the new shift cycle and extra jobs were announced by
the Company, the Union agreed to the proposals and welcomed
the possibility of extra jobs. The Company was urged to give
prior consideration to present casual staff, and agreed to do
so. The worker was interviewed but was unsuccessful for one
of the production jobs. However, during the interview he was
asked if he would work permanent night shift. This question
was constructed and put deliberately to the employee in the
knowledge that the answer would be 'no'. The interview board
were fully aware that the worker, for domestic reasons, could
not work permanent night shift, and the Company's general
manager had previously exempted him from night working. The
worker was prepared to work nights in a shift situation but
not on a permanent basis.
3. At a further meeting with the Union in November, 1987 the
Company outlined its new manning arrangements. Two employees
(including the worker) were not included in these
arrangements. This situation was totally unacceptable to the
Union given that two new employees had been recruited while
two long serving employees were placed on lay-off. The issue
of seniority was vitally important as it appeared that only
those with seniority were assured of a full season, because of
the appointment of extra full time staff. The seasonal notice
of production, the interchangeability and mobility of labour
confirmed this belief and as there were no proposals on the
seniority issue forthcoming from management, the Union
undertook to refer the matters through the agreed procedures.
Meanwhile the Company undertook to make a full check on all of
the workers service. The worker requested from the Company
that consideration be given to the fact, that if his claim for
one of the production posts failed, he would be the number one
temporary worker to be recalled. When it transpired that he
was not successful for the production post, a good deal of
resentment was felt by his colleagues culminating in mass
protest and a stoppage of work. The Union was instrumental in
negotiating a return to work.
4. In December, 1987 a further Union/Company meeting was held
to discuss the employee's situation in relation to the date of
commencement of his employment and his seniority. The Union
pointed out to management that more openness on their part,
and the postponement of the new shift system would have
averted the industrial action. The Company accepted this
statement, however further talks proved fruitless and the
dispute was referred to a Rights Commissioner. The Union
accepted his recommendation in relation to "recruitment of
staff." With regard to seasonal work the Union re-iterated
its claim that the worker should have first preference in any
recall of temporary staff. The Company responded by
terminating the worker's employment, as from 12th April, 1988,
and refused to discuss further, the matter of seasonal work.
5. The worker has been very much the victim of circumstances,
not of his own making, and outside his own control. He was in
a most unfortunate position in 1986 and a more compassionate
stance, by Management, should have been taken. Casual workers
are, by the nature of their employment vulnerable, because
they do not know when they may be recalled especially when the
weather is bad. Under these conditions planning is difficult
and a realistic approach should be undertaken by Management in
the recall of temporary employees. The worker was always keen
to continue in employment, and this would still be the case,
were he not treated so harshly by the Company.
COMPANY'S ARGUMENTS:
4. 1. The worker has been employed by the Company in a temporary
capacity on a number of occasions over previous years but
prior to his employment in September, 1987 he had not worked
with the Company since May, 1986, when he had been employed as
a temporary baling operative. Although offered further
temporary work subsequent to this, he declined the offer on
two occasions. Under the new working arrangements, agreed
with the Union, the Company had seven posts to be filled and
various applications were received including one from the
worker. The Company held a number of interviews and
assessments for the posts which were carried out by two
senior, and three middle management personnel. During the
interview the worker, like all others interviewed, was asked
if he would be prepared to work on the night shift but he was
emphatic in his refusal to do so. As a result, the Company
had no other option but to terminate the worker's employment.
2. The Union were unable to accept Management's decision, not
to appoint the worker to a production assistant's position.
Following a number of meetings on the issue, and in order to
maintain industrial harmony, the Company agreed to keep the
worker in employment provided he worked the night shift where
work was available pending a Rights Commissioner's
investigation into the matter. The Union was in agreement,
however what followed was a disagreement about the arrangement
by the worker, and an unofficial strike instigated by him
resulting in a loss of 140 man days. A Rights Commissioner
heard the case in February, 1988 and issued his recommendation
as follows:-
"I recommend that the worker accepts the Company decision
regarding the permanent appointments, and the Company
considers the worker for any temporary opportunities
which may arise during the 1988/89 season."
3. In line with the agreement to maintain the status quo
until such time as the issue had been investigated, the
Company wrote to the worker, who had been absent for the
previous four months and advised him that his employment was
being terminated as from 12th April, 1988. The Company was
fully justified in terminating the worker's employment.
Already, his employment was extended five months beyond what
it should have been on the basis that he would work night
shift until the matter had been resolved. The employee very
reluctantly worked three nights out of a total of ninety five
which should have been worked. The Rights Commissioner upheld
the Company's decision regarding permanent appointments, and
the Union accepted his Recommendation. As the worker had only
applied for one of the production assistant positions and had
refused to work on night shift, his unsuccessful application
meant that there was no work for him and therefore in line
with the terms of the contract under which he was employed,
the Company had no other option but to terminate his
employment. The Company believes that in all the
circumstances, its decision to terminate the worker's
employment was fair and reasonable.
RECOMMENDATION:
5. The Court recommends that the worker concerned be favourably
considered for the next suitable temporary vacancy which arises in
the Company.
~
Signed on behalf of the Labour Court
John O'Connell
_____________________
7th February, 1989 Deputy Chairman.
T.O'D./J.C.