Labour Court Database __________________________________________________________________________________ File Number: CD90334 Case Number: AD9034 Section / Act: S13(9) Parties: PREMIER DAIRIES LIMITED - and - UNION OF MOTOR TRADE TECHNICAL AND INDUSTRIAL EMPLOYEES |
Appeal by the Company against Rights Commissioners Recommendation No. S.T. 52/90 concerning the payment of compensation to a worker.
Recommendation:
7. The Court is satisfied that the transfer of the worker
concerned in this case was entirely related to his work related
disability and completely unrelated to then current difficulties
about staffing in the garage.
Given these circumstances as opposed to the position of other
workers who at the time may have voluntarily chosen transfer the
Court is of the opinion that the Rights Commissioner was mistaken
in recommending payment of any of the compensation which was later
negotiated to deal with the staffing problem. The Court therefore
decides that the Company's appeal should be upheld.
Division: Mr O'Connell Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD90334 APPEAL DECISION NO. AD3490
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: PREMIER DAIRIES LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
UNION OF MOTOR TRADE TECHNICAL AND INDUSTRIAL EMPLOYEES
SUBJECT:
1. Appeal by the Company against Rights Commissioners
Recommendation No. S.T. 52/90 concerning the payment of
compensation to a worker.
BACKGROUND:
2. The worker concerned was employed for the past 14 years as a
mechanic in the Rathfarnham Depot. In 1987 the worker contracted
dermatitis which he alleged was work related. Following a visit
to the Company doctor and negotiations at local level arrangements
were made to have him transferred to the wholesale drivers
section. He took up his new position there with effect from 28th
June, 1989. It was also agreed at that time that his pension
would be based on his craft rate (#220 basic) as opposed to the
drivers rate (#180 basic). As a result of the transfer the worker
incurred a loss of earnings of approximately #37 a week (details
supplied to the Court).
3. During the course of 1989 discussions took place between the
Company and the Unions on a rationalisation plan for the garage.
Agreement was reached in October, 1989 that revised rosters would
be introduced which would eliminate the need for overtime and that
staff numbers would be reduced by natural wastage. In return it
was agreed to compensate each mechanic in the garage with #3,000
gross for loss of overtime and #2,300 for loss of tea money. The
worker here concerned claimed entitlement to these payments. The
Company rejected the claim and the matter was referred to a Rights
Commissioner for investigation and recommendation. The Rights
Commissioner investigated the claim on the 9th May, 1990 and on
24th May, 1990 issued the following recommendation:
"In the circumstances I believe that the claimant was entitled
to benefit from the total package on offer as his transfer
was part of the exercise concluded one day after this
transfer. This fact should not be used to technically deny
him the benefits so negotiated.
However his average loss is #37 per week as against the #47
per week which his former colleagues have suffered.
Therefore he should not benefit from that part of the deal
which covers loss of earnings. He is entitled in my view to
benefit from that part covering loss of "tea money."
Accordingly I recommend that he receives the agreed
compensation of #2,500 for that element of loss alone, as
this is a direct loss to him in the same way as it was for
his former colleagues."
4. The Company appealed the recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. The
Court heard the appeal on 10th August, 1990.
COMPANY'S ARGUMENTS:
5. 1. The worker, in the Company's view, is not entitled to
compensation as his transfer had nothing to do with the
re-organisation that was taking place in the garage. He was
transferred approximately three months prior to the change in
rosters. This transfer was voluntary and was as a result of
the worker's allegation that his dermatitis was work related.
The other alternative to his transfer was the termination of
his employment.
2. The Union has argued that another worker who transferred
from the body shop to the garage stores was paid compensation
and therefore the worker here concerned is entitled to
compensation. The position in that case was that management
required fewer numbers in the body shop and as part of the
agreement to encourage the worker to transfer it was agreed
with him that his present basic would be maintained and he
would receive any compensation paid to body shop staff as a
result of rationalisation. In this case there was no
agreement. The worker was transferred as the only other
alternative was the termination of employment. The
circumstances in the two cases were totally different. The
subsequent reduction in garage numbers coincided with
management requirements.
UNION'S ARGUMENTS:
6. 1. The worker here concerned should be treated no less
favourably than any of his other fellow workers. He was put
in a position where he had to take a transfer as the Company
informed him that the only alternative was the termination of
his employment.
2. Other workers who transferred to other jobs within the
Company received the same compensation as their former
colleagues as a result of rationalisation. The worker here
concerned is the only worker not to have received any
compensation.
DECISION:
7. The Court is satisfied that the transfer of the worker
concerned in this case was entirely related to his work related
disability and completely unrelated to then current difficulties
about staffing in the garage.
Given these circumstances as opposed to the position of other
workers who at the time may have voluntarily chosen transfer the
Court is of the opinion that the Rights Commissioner was mistaken
in recommending payment of any of the compensation which was later
negotiated to deal with the staffing problem. The Court therefore
decides that the Company's appeal should be upheld.
~
Signed on behalf of the Labour Court
John O'Connell
__________________________
24th August, 1990. Deputy Chairman
M.D./J.C.