Labour Court Database __________________________________________________________________________________ File Number: CD90460 Case Number: LCR13069 Section / Act: S67 Parties: JOHNSON & JOHNSON (IRELAND) LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning the alleged unfair selection in recall of a temporary worker.
Recommendation:
7. Having considered the submissions made in this case, whilst
acknowledging that no formal agreement exists between the worker
and the Company, the Court is of the view that the Company by its
own choice has established by custom and practice a relationship
of mutual benefit, insofar as it did not recall former employees
to short term employment on a random basis but apparently choose
the workers on the basis of their experience and suitability to
carry out the tasks.
It is the opinion of the Court that such a relationship cannot
equitably be terminated without reasonable cause or explanation
and it therefore recommends that the Company restore the worker's
priority on the list of former employees recalled for temporary
work, and recommends the payment of #250 compensation for losses
suffered since her recall ceased.
Division: Mr O'Connell Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD90460 RECOMMENDATION NO. LCR13069
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: JOHNSON & JOHNSON (IRELAND) LIMITED
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning the alleged unfair selection in recall of a
temporary worker.
BACKGROUND:
2. The worker concerned was employed by the Company from
September, 1980 to April, 1987. She was made redundant, along
with a number of other workers, due to a downturn in business.
Following the redundancy programme it was common for the Company
to recall 6 or 7 former workers and employ them during peak
periods in a temporary capacity. The worker here concerned was
always one of the first to be recalled.
3. The worker completed her last period of employment on 14th
November, 1989 and has not been re-employed since. The Union
contend that the reason for the worker's non selection for
temporary work since her last period of employment is due to the
fact that she is engaging in legal action against the Company as a
result of an industrial accident she had in January, 1989. The
Company deny this on the basis that no agreement exists for
re-employing former employees for temporary work and those so
re-employed are done so at the discretion of the Company.
4. In January, 1990 following the recall of eight former workers
(excluding the worker here concerned) the Union raised the issue
with the Company. As no agreement was possible the matter was
referred to the conciliation service of the Labour Court on 18th
April, 1990. A conciliation conference was held on 24th July,
1990. As no agreement was reached the dispute was referred to the
Labour Court for investigation and recommendation. A Court
hearing was held on 7th September, 1990.
UNION'S ARGUMENTS:
5. 1. It is the Union's contention that the worker concerned is
being victimised, in not being recalled when temporary work
arises, because she instituted legal action against the
Company following an industrial accident which she had in
January, 1989. She last worked on 14th November, 1989. The
Company received a letter from her solicitor on the 16th
November and she has not worked since for the Company.
2. When she was made redundant in 1987 she received an
excellent reference. She was among the first three to be
re-called every time between 1987 and November, 1989. While
there is no written agreement in place it is clear that a rota
does exist by custom and practice as practically the same
people in the same order were re-called everytime temporary
work arose.
3. The Company has never offered any reasonable explanation
as to why it ceased to recall the worker here concerned. It
is obvious that she is being victimised because of the
litigation she is engaged in and the Court is asked to
recommend that the discrimination ceases forthwith and that
the worker be compensated in respect of the hurt and loss she
has suffered.
COMPANY'S ARGUMENTS:
6. 1. In April 1987, the worker was made redundant as part of a
major reorganisation which took place at that time. She
volunteered for the redundancy under terms which were agreed
with her Union and which were recognised as being extremely
generous at the time.
2. It was made clear to the Union and to the employees who
became redundant at that time that they would have no rights
of special consideration in relation to any future
recruitment. Since then, on a number of occasions, the
Company has hired people for short-term periods of
week-to-week work when seasonal demand or repackaging
requirements dictated the need. The worker here concerned has
been hired on all/most such occasions between the termination
of her employment in 1987 and the cessation of her last period
of short term employment in mid-November, 1989.
3. The Company has not re-employed the worker after the
termination of her last period of short-term employment in
1989. There is no agreement either with her or her Union that
the Company should re-employ her. The Company has simply not
chosen to re-employ her and believe that it is perfectly
within its rights to do so. The Company is in breach of no
law or agreement with the Union. In the circumstances, the
Company believes it has the right to employ or not to employ
as it chooses.
RECOMMENDATION:
7. Having considered the submissions made in this case, whilst
acknowledging that no formal agreement exists between the worker
and the Company, the Court is of the view that the Company by its
own choice has established by custom and practice a relationship
of mutual benefit, insofar as it did not recall former employees
to short term employment on a random basis but apparently choose
the workers on the basis of their experience and suitability to
carry out the tasks.
It is the opinion of the Court that such a relationship cannot
equitably be terminated without reasonable cause or explanation
and it therefore recommends that the Company restore the worker's
priority on the list of former employees recalled for temporary
work, and recommends the payment of #250 compensation for losses
suffered since her recall ceased.
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Signed on behalf of the Labour Court,
John O'Connell
___5th__November,__1990. ___________________
M. D. / M. F. Deputy Chairman