Labour Court Database __________________________________________________________________________________ File Number: CD9235 Case Number: AD92164 Section / Act: S13(9) Parties: WOCO INDUSTRIAL COMPONENTS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by both parties against Rights Commissioner's recommendation C.W. 466/91 concerning the dismissal of a worker.
Recommendation:
5. The Court has fully considered the views of the parties
expressed in their oral and written submissions.
The Court finds that the procedure adopted in the case of the
complainant by the Company was in accordance with the arrangements
applied regarding temporary employment prior to the agreement
negotiated with the Union in August, 1991.
The Court concurs with the views expressed by the Rights
Commissioner that the dismissal of the complainant was the
catalyst which helped to produce the new agreement and that it was
appropriate without precedent that he should be a possible
beneficiary under the new agreement.
The Court accordingly takes the view that should he wish to be
considered for future vacancies the worker should be given
favourable consideraton for employment as a temporary employee
when the next suitable vacancy occurs.
The Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD9235 APPEAL DECISION NO. AD16492
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: WOCO INDUSTRIAL COMPONENTS LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by both parties against Rights Commissioner's
recommendation C.W. 466/91 concerning the dismissal of a worker.
BACKGROUND:
2. The Company is located at Carrick-on-Shannon and manufactures
injection moulded rubber components for the European automotive
industry. It employs approximately 125 workers. The worker
concerned commenced temporary employment with the Company on the
25th May, 1990. He was dismissed on the 1st February, 1991. The
Union sought to have the worker reinstated. Management rejected
the Union's claim. The issue was referred to a Rights
Commissioner for investigation. On the 2nd December, 1991 the
Rights Commissioner issued his recommendation as follows:-
"I recommend that the Company considers the worker's
application for a permanent position under Clause 5 of the
new agreement when the next suitable vacancy occurs, on a
without precedent basis".
(The worker was named in the Rights Commissioner's
recommendation).
By letter dated 4th December, 1991 the F.I.E. sought clarification
from the Rights Commissioner that his recommendation applied to
the worker's application for a temporary position. The Rights
Commissioner confirmed that his recommendation applied to the next
suitable temporary position. Subsequently, both parties appealed
the recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeals in
Donegal on the 13th May, 1992.
UNION'S ARGUMENTS:
3. 1. The Company should reinstate the worker because there are
temporary workers on the Company's payroll with less service.
He had completed nine months in the employment and had a
reasonable expectancy of continuing in the job. It is unfair
to deprive the worker of his job simply because he had the
longest service. At subsequent discussions the Union sought
to regulate the employment of temporary workers to prevent
such unfair occurrences happening in the future. An Agreement
was concluded with the Company in August, 1991 which
effectively prevents the dismissal of temporary workers other
than on a service basis.
2. The Union rejected the Rights Commissioner's
recommendation because it was totally at variance with what
the Union was seeking on behalf of the worker, which was (1)
an appointment to a permanent post or (2) his re-engagement as
a temporary employee with recognition for the nine months'
service which had been unfairly taken from him.
3. In accepting the Agreement regulating the employment of
temporary workers, which effectively reversed the previous
practice of dismissing temporary employees on the basis of
first in first out, the Company is admitting that this
practice was unfair. There was no criticism by Management of
the worker's employment record and no allegation was ever made
that he was unsatisfactory in any way.
4. The Company's refusal to reinstate the worker is
discriminatory and is at variance with natural justice. The
worker has not been employed since his dismissal in February,
1991. It was the intention of the Rights Commissioner that
the worker should be given consideration for reinstatement and
the Union requests the Court to decide that he should be
reinstated forthwith, either as a permanent worker or as a
temporary employee, with credit for his previous nine months'
service.
COMPANY'S ARGUMENTS:
4. 1. The Company's willingness to accept the Rights
Commissioner's revised recommendation was conditional on the
Union doing likewise. The Company's appeal is based on the
premise that this individual case must be assessed against the
criteria of fairness and established practice prior to the
conclusion of the 1991 Agreement on temporary workers. The
Rights Commissioner, in his findings, acknowledged that the
Company had acted consistently with established practice at
that time.
2. The present dispute relates solely to the worker concerned
and his individual case. There is no ambiguity relative to
the worker's status as a temporary worker. He was one of a
number of temporary employees engaged by the Company in 1990
on a basis that was long established practice for many years.
The termination of the worker's employment was consistent with
the contract under which he was employed and the recognised
practice obtaining in the Company. It would be foolish on the
part of Management to give any temporary worker an expectation
of permanency as has been alleged by the worker. This
allegation is denied by the Company and is contrary to the
manner in which the Company conducts its affairs.
3. The Company indicated a willingness to accept the terms of
the revised Rights Commissioner's recommendation which meant
that the case of the worker concerned ought to be dealt with
under the auspices of the Agreement. This represented a
considerable concession on the Company's part as the terms of
the Agreement specifically related only "to all future
temporary employees". The Union's insistence that the worker
be afforded the next permanent vacancy arising runs contrary
to the Agreement in so far as it relates to temporary rather
than permanent positions and to future positions only, and
ignores Clause 3 of the Agreement which sets out the agreed
position regarding the filling of permanent positions.
DECISION:
5. The Court has fully considered the views of the parties
expressed in their oral and written submissions.
The Court finds that the procedure adopted in the case of the
complainant by the Company was in accordance with the arrangements
applied regarding temporary employment prior to the agreement
negotiated with the Union in August, 1991.
The Court concurs with the views expressed by the Rights
Commissioner that the dismissal of the complainant was the
catalyst which helped to produce the new agreement and that it was
appropriate without precedent that he should be a possible
beneficiary under the new agreement.
The Court accordingly takes the view that should he wish to be
considered for future vacancies the worker should be given
favourable consideraton for employment as a temporary employee
when the next suitable vacancy occurs.
The Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
____________________
9th June, 1992. Deputy Chairman
T.O'D/J.C.