Labour Court Database __________________________________________________________________________________ File Number: CD89803 Case Number: AD907 Section / Act: S13(9) Parties: DRAMMOCK LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. BC273/89 concerning the relative seniority of a Quality Control Operator.
Recommendation:
7. The Court having considered the submissions of the parties
does not find grounds to alter the recommendation of the Rights
Commissioner.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD89803 APPEAL DECISION NO. AD790
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: DRAMMOCK LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. BC273/89 concerning the relative seniority of a
Quality Control Operator.
BACKGROUND:
2. In February, 1988 it was agreed that the Quality Control
function would be totally re-organised and that interviews would
be held to make new appointments. This was due to complaints from
the Company's major buyer and the workers' dissatisfaction with
the system. The worker concerned had been working in the Quality
Control area but had been out on maternity and sick leave. The
Production Manager called to the worker's home on three occasions
to inform her of the situation, however she was not in and on the
last occasion he left her a note asking her to contact the
Company. The worker maintains that she contacted the Company
within two days of this, however the Company maintains that the
worker did not contact it until a week later, at which stage all
appointments had been made. The Union claimed that the worker
should be employed in the Quality Control area and the matter was
referred to the Rights Commissioner Service. A Rights
Commissioner investigated the dispute on 26th August, 1988 and
recommended that the worker should receive an ex gratia sum of
#100, that the Company should endeavour to accommodate her as a
Quality Control operator within three months and that, if a fourth
shift which was expected to be introduced was not, the Company
should recognise the long service of the worker and find a
position for her in the Quality Control area. The Rights
Commissioner also recommended that if any issue arose regarding
the relative service of the quality control operators this should
be settled by direct discussions and if not referred back to him.
(The findings and recommendation are set out in Appendix A). This
recommendation was accepted by both parties. The fourth shift was
not introduced as expected, however, one of the existing operators
resigned from the Quality Control area and the worker concerned
here was appointed to the position in November, 1988.
3. In October, 1989 a lay-off situation arose in the Company.
The practice in the Company is to offer the more senior workers
other positions such as packing as an alternative to lay-off. The
Company's position was that this worker had been appointed to the
Quality Control position after the other two workers in the area
and that she would either have to be laid off or transfer to
packing. This was rejected by the Union which claimed that she
had seniority over the most recently appointed worker in the
Quality Control area. No agreement could be reached and the Union
referred the matter to the Rights Commissioner. It emerged that
also at issue was the rate of pay which the worker should be paid
while in packing. The Union is claiming that the Company/Union
agreement provides that in the case of a temporary transfer a
worker should maintain the higher grade rate. The Company's
position was that this did not apply when the transfer was an
alternative to lay off. The Rights Commissioner investigated the
matter on 13th October, 1989. The Union's position is that the
Rights Commissioner dealt with a clarification of his earlier
recommendation. The Company states that this is a recommendation.
The Rights Commissioner's findings were as follows:-
"Having heard the submissions from both parties and
having posed certain questions to each party I have
come to the following conclusions:
1. Mary Murtagh's seniority to be upheld and this then
would entitle her to participation on the two
remaining shifts as a QC operator.
2. Mr. Henry McDowell to be transferred to packing.
3. The issue of a temporary transfer and the retention
of the original rate of pay during this temporary
transfer to be defined as a transfer lasting up to
three months duration.
I recommend accordingly."
4. On 3rd November, 1989 the Company, appealed the recommendation
of the Rights Commissioner to the Labour Court under Section 13(9)
of the Industrial Relations Act, 1969. The Court heard the appeal
on 4th December, 1989.
COMPANY'S ARGUMENTS:
5. 1. Prior to February, 1988 quality control was totally
unsatisfactory and a more professional and expert approach to
quality control was needed. As a result of this a new quality
control function was established and interviews were held for
the new quality control positions. Of the three workers
appointed only one had previously worked in the quality
control area. This worker was not appointed on a full time
basis until November, 1988 and therefore has less service on
the job as it now is relative to the other two workers. In
addition, selection of workers for lay-off is based on
performance as well as service and even if all the workers had
been appointed at the same time this worker would have been
selected for lay-off on the basis of performance.
5. 2. Where the Company can offer positions to more senior
workers in other areas as an alternative to lay-off and the
worker opts for this the worker is paid the rate for the job
to which they are relocated. The Company could not continue
in such a competitive market if after dropping a shift it was
forced to run the remaining shift with the workers being paid
their higher grade rates. The Rights Commissioner based his
recommendation on this issue on the clause on temporary
transfers in the Company/Union agreement. However, this
clause applies to temporary transfers which occur during the
course of normal working for operational/efficiency reasons.
If this clause applied to a lay-off situation it would be
counterproductive as the Company would no longer be able to
offer more senior workers alternative employment due to the
costs involved.
UNION'S ARGUMENTS:
6. 1. The whole basis for these proceedings is questionable.
Firstly, the Company accepted the original recommendation and
therefore, this is not under appeal. The Company appears to
be appealing a clarification of a recommendation. This is not
an issue that the Court is entitled to consider at all.
Secondly, the Company appears to be appealing an
interpretation of an agreement. Again, it is difficult to
understand how one can appeal what is in effect an
arbitration.
2. This matter has now been referred to the Rights
Commissioner twice and on both occasions he has determined the
position in favour of this worker. On this basis there are
no grounds for altering the Rights Commissioner's
recommendation.
3. The issue of the temporary transfer and the clause in the
Company/Union agreement on this has been interpreted by the
Rights Commissioner. The Rights Commissioner has in fact
erred in the Company's favour. The Union's position is that
anything that is not permanent is temporary and that the
worker is entitled to maintain her rate for as long as that
remains the case. In the circumstances, the three month
period recommended by the Rights Commissioner should be
extended.
DECISION:
7. The Court having considered the submissions of the parties
does not find grounds to alter the recommendation of the Rights
Commissioner.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
_______________________
29th January, 1990 Deputy Chairman.
U.M./M.F.
APPENDIX A
"FINDINGS
Having investigated the matter and given full and careful
consideration to the points made by both parties, I have come to
the following conclusions:-
1. I believe that this is a situation where a genuine
misunderstanding has arisen and indeed neither party can be
held to blame;
2. I accept that it would be more congenial for Mrs. Murtagh to
be assigned to quality control functions;
3. I also accept the contention of management that currently the
working relationship and efficiency from the quality control
operation is highly satisfactory; and
4. I note that the company had hoped to have had another shift
in operation by the summer and that this was deferred due to
marketing problems. However, I also note that due to the
withdrawal from the market of one of the competitors of
Drammock management is hopeful that the need will shortly
arise for this fourth shift to be set up.
Recommendation
In the light of the above and in the context that some loss of
income, although not of a substantial nature was suffered by
Mrs. Murtagh and also in the context of the genuineness of the
positions of both parties, I recommend as follows:-
1. Drammock Ltd. to pay to Mrs. Murtagh an ex gratia sum of
#100;
2. The company to make every endeavour to accommodate
Mrs. Murtagh as a quality controller as early as possible
but certainly within three months from the date of this
recommendation; and
3. Should the fourth shift not emerge within this three
month period then it will be necessary for the company to
recognise the long service of Mrs. Murtagh as a quality
control officer and to find a position for her on the
quality control team. In making this section of my
recommendation I am relying upon the clear and categoric
assurances given by the trade union representatives
present that should Mrs. Murtagh's service be recognised
and should she be appointed to the quality control
function, thus dislodging another employee, that the
union will support management in ensuring that this move
had no repercussions whatsoever.
I further recommend that if any issue should arise with
regard to the relative service of the quality control
operators that this should be settled, if at all possible, by
direct discussions should such discussions prove to be
fruitless then the parties may refer the matter to me."