Labour Court Database __________________________________________________________________________________ File Number: CD91157 Case Number: AD9151 Section / Act: S13(9) Parties: POWER SUPERMARKETS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union of Rights Commissioner's Recommendation No. C.W. 20/91 concerning the transfer of a worker.
Recommendation:
I recommend that the Union accepts that the Company has a
right to transfer the worker from Artane to Drumcondra, and
also that the Company notes that the worker has an expressed
wish to settle down in a fixed location."
(The worker was named in the Rights Commissioner's
Recommendation).
The Rights Commissioner's recommendation was rejected by the Union
who appealed it to the Labour Court on 4th March, 1991, under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 14th June, 1991, the earliest date suitable.
(The worker transferred to the Drumcondra branch on 25th February,
1991).
UNION'S ARGUMENTS:
3. 1. The worker has been employed by the Company for over nine
years and has an excellent record of service. During his nine
years he has been involved in eight transfers from one branch
to another and has always obliged the Company. Two years ago
he was moved from Hartstown to Artane and was thanked for his
co-operation with various moves. He was given an assurance
that he would not be moved again.
2. In November, 1990, he was given one day's notice of the
Company's decision to transfer him to Drumcondra. He was very
upset by this news. The Union contends that at this point
undue pressure was put on the worker to transfer. The worker
felt intimidated by the Company's attitude towards him.
3. There is an agreed set of guidelines for the movement of
staff from one store to another as follows:
(i) Decline in business resulting in an over staffing
situation.
(ii) Last in would be first out.
(iii) Short staffing/sickness resulting in temporary
transfer.
(iv) A branch or department closure.
(v) A request to transfer.
None of these guidelines apply in this case. The Company has
not put forward any cohesive argument why the worker concerned
was singled out for this type of treatment. The Union is
concerned that the Company's motive for moving the worker is
the fact that he was the Union spokesman in the Artane branch.
4. To-date, staff moves have always been effected without
duress and with sensitivity for the person being moved. This
was not the attitude in this case. As the Company has failed
to comply with the agreed criteria for staff moves, the Court
is requested to reject the Rights Commissioner's
recommendation.
COMPANY'S ARGUMENTS:
4. 1. In the course of his employment with the Company, the
worker concerned has transferred to various branches as
requested. He transferred at his own request from Crumlin to
Artane in April, 1989. Prior to this he had worked in
Hartstown, Clondalkin and Crumlin branches. Periodic movement
of staff between branches is normal practice. There is no
question of victimisation in this case. No assurance was
given to the worker that he would not be requested to transfer
from Artane.
2. The Rights Commissioner upheld the Company's right under
agreement and existing practice to transfer butchers and
apprentices to other locations in Dublin. No acceptable
reason has emerged which would justify the worker's refusal to
move. There are no criteria for the movement of staff as the
Union has outlined.
3. Reversal of the Rights Commissioner's recommendation in
this case would have serious repercussive implications for the
operation of the agreement of transferability of butchers in
Dublin. The Company submits that the Rights Commissioner's
recommendation should be upheld.
DECISION:
5. Having considered the submissions made by the parties the
Court is of the opinion that the Rights Commissioner's
Recommendation should stand.
The Court so decides.
Division: Mr O'Connell Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD91157 APPEAL DECISION NO. AD5191
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: POWER SUPERMARKETS LIMITED
(T/A) QUINNSWORTH)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union of Rights Commissioner's Recommendation
No. C.W. 20/91 concerning the transfer of a worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company in
1982, as an apprentice butcher. He continued employment with the
Company following completion of his apprenticeship. In November,
1990, the Company requested the worker to transfer from its Artane
branch to the Drumcondra branch. The worker refused to transfer
and following local discussions involving the Union, the Company
agreed, without prejudice, to delay the worker's transfer pending
a Rights Commissioner's investigation of the matter. On 20th
February, 1991, the Rights Commissioner issued the following
findings and recommendation:
"FINDINGS
I do not believe that the Company is seeking the transfer of
the worker on any personal reasons. It is clearly not a
vindictive or frivolous transfer. I consider that the
Company has the right to request and enforce a transfer in
these circumstances.
RECOMMENDATION
I recommend that the Union accepts that the Company has a
right to transfer the worker from Artane to Drumcondra, and
also that the Company notes that the worker has an expressed
wish to settle down in a fixed location."
(The worker was named in the Rights Commissioner's
Recommendation).
The Rights Commissioner's recommendation was rejected by the Union
who appealed it to the Labour Court on 4th March, 1991, under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 14th June, 1991, the earliest date suitable.
(The worker transferred to the Drumcondra branch on 25th February,
1991).
UNION'S ARGUMENTS:
3. 1. The worker has been employed by the Company for over nine
years and has an excellent record of service. During his nine
years he has been involved in eight transfers from one branch
to another and has always obliged the Company. Two years ago
he was moved from Hartstown to Artane and was thanked for his
co-operation with various moves. He was given an assurance
that he would not be moved again.
2. In November, 1990, he was given one day's notice of the
Company's decision to transfer him to Drumcondra. He was very
upset by this news. The Union contends that at this point
undue pressure was put on the worker to transfer. The worker
felt intimidated by the Company's attitude towards him.
3. There is an agreed set of guidelines for the movement of
staff from one store to another as follows:
(i) Decline in business resulting in an over staffing
situation.
(ii) Last in would be first out.
(iii) Short staffing/sickness resulting in temporary
transfer.
(iv) A branch or department closure.
(v) A request to transfer.
None of these guidelines apply in this case. The Company has
not put forward any cohesive argument why the worker concerned
was singled out for this type of treatment. The Union is
concerned that the Company's motive for moving the worker is
the fact that he was the Union spokesman in the Artane branch.
4. To-date, staff moves have always been effected without
duress and with sensitivity for the person being moved. This
was not the attitude in this case. As the Company has failed
to comply with the agreed criteria for staff moves, the Court
is requested to reject the Rights Commissioner's
recommendation.
COMPANY'S ARGUMENTS:
4. 1. In the course of his employment with the Company, the
worker concerned has transferred to various branches as
requested. He transferred at his own request from Crumlin to
Artane in April, 1989. Prior to this he had worked in
Hartstown, Clondalkin and Crumlin branches. Periodic movement
of staff between branches is normal practice. There is no
question of victimisation in this case. No assurance was
given to the worker that he would not be requested to transfer
from Artane.
2. The Rights Commissioner upheld the Company's right under
agreement and existing practice to transfer butchers and
apprentices to other locations in Dublin. No acceptable
reason has emerged which would justify the worker's refusal to
move. There are no criteria for the movement of staff as the
Union has outlined.
3. Reversal of the Rights Commissioner's recommendation in
this case would have serious repercussive implications for the
operation of the agreement of transferability of butchers in
Dublin. The Company submits that the Rights Commissioner's
recommendation should be upheld.
DECISION:
5. Having considered the submissions made by the parties the
Court is of the opinion that the Rights Commissioner's
Recommendation should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
_______________________
28th June, 1991. Deputy Chairman
B.O'N./J.C.