Labour Court Database __________________________________________________________________________________ File Number: CD92668 Case Number: AD92230 Section / Act: S13(9) Parties: J.C.M. DISTRIBUTION - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation No. C.W. 286/92 concerning the Company's failure to recall a temporary worker.
Recommendation:
8. Having considered the submissions from the parties the Court
finds no grounds for disagreeing with the Rights Commissioner's
view that the appellant had not been treated fairly and also finds
no basis for overturning his recommendation.
The Court accordingly rejects this appeal and upholds the
recommendation.
The Court so decides.
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD92668 APPEAL DECISION NO. AD23092
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: J.C.M. DISTRIBUTION
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation No. C.W. 286/92 concerning the Company's failure to
recall a temporary worker.
BACKGROUND:
2. The Company is the sole distribution for Mars confectionery in
Ireland. The Company was formed in 1986 when it demerged from
Tennant and Ruttle Distribution and is now based on the Greenhills
Road, Tallaght.
3. The worker was employed as a temporary storeman. He commenced
duty on 10th June, 1991. He had 4 periods of employment in 1991
and 2 in 1992. His last period of employment ended on 6th April,
1992. In May, 1992 a number of temporary workers were recalled.
The worker was not recalled and in response to a query from the
Union the Company stated that the worker was unsuitable for
re-employment.
4. The Union rejected the reasons put forward regarding the
worker's unsuitability and referred the dispute to a Rights
Commissioner for investigation and recommendation. A Rights
Commissioner's investigation took place on 21st September, 1992,
following which he issued findings and recommendation dated 7th
October, 1992:-
"FINDINGS
There was some disagreement as to whether the shop steward
had been advised when the Company alleged that the worker had
been warned by the Controller. Clearly the Company has a
right to decide when to hire or not to hire in the event of
temporary vacancies. The issue here is whether the Company
acted fairly towards the worker when making this decision.
In effect the Company allowed his employment to lapse after
April, 1992. I am not convinced that the worker was fully
aware of the gravity of the reprimands he received and that
his continued employment was in serious danger. It is
obvious the Company took a decision not to re-hire the worker
before the expiry of his last period of temporary employment.
This decision in my opinion should have been communicated to
him at that time. I do not accept the comparison with the
Tennant and Ruttle decision".
The Rights Commissions recommended as follows:-
"I recommend the Company offers and the worker accepts the
payment of two week's wages in settlement of this dispute".
The worker was referred to by name in the Rights Commissioner's
recommendation.
5. The Union appealed the Rights Commissioner's recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on 20th November, 1992.
UNION'S ARGUMENTS:
6. 1. The Union rejects the reasons put forward by the Company
for its failure to recall the worker on the grounds that he
was unsuitable. The worker was never formally spoken to about
his conduct, nor was the Union made aware of any difficulties.
This is in contrast to previous occasions when the Company
would advise the Union of problems with temporary workers.
2. It should have been possible for the Company to determine
whether the worker was suitable or not after the first period
of employment. The worker had six periods of employment in
total with the Company, which is a fairly long period of
employment. If the Company was having difficulty with the
worker it should have informed him accordingly and afforded
him the opportunity of improving his performance/attitude.
3. In a previous Labour Court recommendation in respect of a
sister Company in a similar issue, the Court recommended, that
in view of the Company's failure to make clear its
dissatisfaction with a worker's performance, he should be
re-employed for the next period of employment. The same
approach should be adopted in this case.
COMPANY'S ARGUMENTS:
7. 1. There had been a noticeable deterioration in the worker's
behaviour and attitude during his last period of employment.
While his conduct did not warrant dismissal it was serious
enough to necessitate the Warehouse Operations Controller to
speak to him on three occasions (details supplied to the
Court). There was no improvement in his behaviour.
2. The Company has, in the past, refused to recall other
workers in similar circumstances (details supplied to the
Court).
3. The worker was clearly employed in a temporary capacity.
To recall him after his poor performance would not augur well
for the future. It is the Company's experience that temporary
workers normally work harder than their full-time colleagues
in order to impress Management in the hope of being made
permanent.
4. The Company must have the ultimate decision to recruit
workers whether they be permanent or temporary employees.
DECISION:
8. Having considered the submissions from the parties the Court
finds no grounds for disagreeing with the Rights Commissioner's
view that the appellant had not been treated fairly and also finds
no basis for overturning his recommendation.
The Court accordingly rejects this appeal and upholds the
recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
___________________
7th December, 1992. Deputy Chairman.
M.D./J.C.