Labour Court Database __________________________________________________________________________________ File Number: CD90626 Case Number: AD914 Section / Act: S13(9) Parties: RORER IRELAND LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. S.T.245/90 concerning a claim for unfair selection for redundancy.
Recommendation:
8. Having considered the submissions of the parties and the relevant
paragraph (No. 10) as amended by the letter of 5th January, 1983 of the
Company/Union agreement, the Court upholds the Company claim that the
Rights Commissioner's Recommendation No. S.T.245/90 should not be
allowed to stand. The Court so decides.
Division: Ms Owens Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD90626 APPEAL DECISION NO. AD491
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1976
SECTION 13(9)
PARTIES: RORER IRELAND 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. S.T.245/90 concerning a claim for unfair selection for redundancy.
BACKGROUND:
2. The Company has been operating in Ireland since 1981 and
manufactures high quality pharmaceutical products for sale locally and
throughout Europe, the Middle East and Far Eastern countries. The
Company employs approximately 137 people.
3. Early in 1990 the Company gave notice to a craftsman that he was
about to be laid off although he was senior to another craftsman by
three months. The Union objected on various grounds but mainly on the
basis of a Plant Agreement dated 5 January, 1980. However, the more
junior man resigned and the craftsman in question has since been
laid-off due to lack of work. The Union did not object as he was then
the most junior.
4. However, the criterion used for the previous selection for
redundancy/lay-off was questioned by the Union and referred to a Rights
Commissioner for investigation and recommendation. The Rights
Commissioner investigated the dispute on 28th August, 1990. On the
20th September, 1990 the Rights Commissioner issued the following
recommendation:
"This is the second case in which I have been involved in which
the current management has been unable to effect changes due to
existing agreements which were entered into in good faith by
their predecessors. The Company representative did not seem to
be aware of the amending letter of the 5/1/83 and now argues that
it did not materially effect the Company's intent now or then. I
cannot share that view, as it was the enabling clause which gave
the Company some flexibility which in my view it forfeited by the
1983 letter. If that is not the case then somebody was conning
someone as the Union clearly saw the removal of the phrase as
conferring the primacy of the L.I.F.O. principle entirely.
Given the culture which exists at the plant in relation to
respect for agreements, I think it a very dangerous exercise for
the Company to risk a breach based on the marginal benefit to it
of one craftsman over another particularly when both were
employed in similar capacities. For all these reasons I
recommend that the Union's claim succeeds".
5. The Company appealed this recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Acts, 1969. The Court heard
the appeal in Nenagh on 4th December, 1990.
COMPANY'S ARGUMENTS:
6. 1. Paragraph 10 of the Plant Agreement provides very
specifically for how the Company should act in the event of
lay-off or redundancy. It states inter alia that the "maintenance
of the most efficient and economic running of the firm will be
taken into account" and in addition "the seniority of the worker
concerned on a departmental basis will be considered by the
Company as a general guide". The Company took the skill and
experience of the two craftsmen into consideration and decided
that the person with the least service had the more experience and
skills appropriate to the Company's needs and on this basis
decided to retain him. (Details supplied to the Court). This
practice was in accordance with the Plant Agreement.
2. Clause 10 of the Agreement does not bind the parties to a
principle of "last in first out". It has been argued that the
letter of the 5th January, 1983 (details supplied to the Court)
amended Clause 10 to be interpreted solely that the "last in first
out" principle applies in all cases of lay-off/redundancy. This
is, in the Company's view, incorrect. The letter of the
5th January, 1983 has been taken out of context. It was issued as
a result of discussions on the setting up of a new automated line
and the employment of temporary workers. Nowhere is it stated
that the letter was an amendment of Clause 10 of the Plant
Agreement.
3. The Company will accept seniority as a general guide.
However, operating within the existing Agreement also permits
other criterion to be taken into account such as skill,
experience, qualifications and behaviour. This criteria was not
affected by the letter of 5th January, 1983.
UNION'S ARGUMENTS:
7. 1. The seniority issue has always been in operation in this
Company who have a habit of keeping staff in a temporary capacity
for as long as four years. The high incidence of temporary work
makes it all the more important for that the seniority rule be
rigidly adhered so as to avoid exploitation of temporary workers.
2. In the case of the craftsmen - both were recruited as
fitters, not as fitter/mechanics or fitter/turners. It is
completely unacceptable to the Union that a new maintenance
manager could at any stage say that a more junior time served
fitter/turner should take precedence in a lay-off situation over a
time served fitter/mechanic as within the job there is no
demarcation. Obviously a more senior person may have more
experience in one element of work than another but not to the
extent that the Company would be unduly or unfairly handicapped by
retaining a suitably qualified person. If the norm sought by the
Company was to be upheld no one would be safe in a job as there
are more technically qualified people arriving on the scene
everyday.
DECISION:
8. Having considered the submissions of the parties and the relevant
paragraph (No. 10) as amended by the letter of 5th January, 1983 of the
Company/Union agreement, the Court upholds the Company claim that the
Rights Commissioner's Recommendation No. S.T.245/90 should not be
allowed to stand. The Court so decides.
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Signed on behalf of the Labour Court
21st January, 1991 Evelyn Owens
M.D. / M. O'C. _______________
Deputy Chairman