Labour Court Database __________________________________________________________________________________ File Number: CD92470 Case Number: AD92219 Section / Act: S13(9) Parties: WATERFORD FOODS LTD. - and - A WORKER;JOHN A. SINNOTT & CO. SOLICITORS |
Appeal by a worker against Rights Commissioner Recommendation (DC59/92) concerning seniority as a Bulk Milk Driver.
Recommendation:
The Court having fully considered all of the views of the parties
expressed in their oral and written submissions does not find
grounds to amend the findings of the Rights Commissioner.
The Court accordingly rejects the appeal of the claimant.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD92470 APPEAL DECISION NO. AD21992
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
PARTIES: WATERFORD FOODS LTD.
AND
A WORKER
(Represented by John A. Sinnott & Co. Solicitors)
SUBJECT:
1. Appeal by a worker against Rights Commissioner Recommendation
(DC59/92) concerning seniority as a Bulk Milk Driver.
BACKGROUND:
2. 1. This dispute arose due to an impending vacancy for a
permanent Bulk Milk Collection Driver, to which two workers
aspired.
2. One worker has been employed as a Bulk Milk Driver since
the 19th April, 1982. He was employed solely in this
capacity and on a number of occasions since 1982, he has been
laid off during the winter periods when the quantity of milk
to be collected decreased and collection was operated on a
five-day week basis.
3. The claimant was employed as a driver in a full-time
capacity in February, 1978, in the Stores and Trading
Division. In April, 1986, the employees in the Stores were
informed that one staff member would be obliged to move from
that Section to the Bulk Milk Collection Section. The
claimant duly transferred on the basis that he could revert
to the Stores in winter if work in the Bulk Milk Collection
area became scarce.
4. From 1986 until the winter of 1989, the claimant's
duties had alternated between the Trading and Bulk Milk
Collection Sections but since late 1989 he had been engaged
solely in bulk-collection duties. The claimant is,
therefore, claiming seniority in service over the other
worker on the grounds that the latter had been laid off
during the winter on a number of occasions since he was first
employed in 1982, whereas the claimant had unbroken service
from the commencement of his employment.
5. The Company did not regard the lay-offs, which occurred
during the winter periods, between 1982 and 1990, as having
any effect on the worker's continuity of employment. They
felt that the claimant did not have a valid claim on
seniority.
6. The matter was referred to a Rights Commissioner who
investigated the dispute on the 2nd July, 1992 and who issued
a recommendation on the 21st July, 1992:-
"I am satisfied from all the evidence that Mr. T. Morris
was employed as a bulk milk driver from the commencement
of his employment with the Company and that his
seniority in that category over Mr. Kavanagh was firmly
established and has been recognised by the Company and
the employees concerned since 1986. To now alter the
status of Mr. Morris would in my view represent a clear
breach of his terms and conditions of employment and I
therefore recommend that Mr. Kavanagh's claim fails and
that the status quo on the seniority of both men be
maintained.
I would further suggest to the Company and the Union
that they should seek to negotiate and agree suitable
procedural criteria on seniority for these workers at
the Inch Depot to obviate the possibility of other
disputes of a similar nature being referred to
arbitration in the future."
7. The Rights Commissioner's recommendation was rejected by the
worker who appealed it to the Labour Court on the 5th August,
1992. The Court heard the appeal on the 21st October, 1992.
CLAIMANT'S ARGUMENTS:
3. 1. The worker has a permanent full-time job with the
Company since 1978 and as such he has a greater number of
years in the factory than the other worker who only commenced
work with the Company in 1982.
2. The worker has been employed on a permanent basis since
1978 whereas the other worker is and always has been
part-time/temporary from 1982. His position has never been
permanent and he was always laid off for the winter months up
until last year.
COMPANY'S ARGUMENTS:
4. 1. The other worker was employed as a Bulk Milk Driver
since 1982 and the claimant was employed as a Bulk Milk
Driver since 1986.
2. Both are permanent employees and have been since
recruitment.
3. The situation has been in existence since 1986 and has
not been challenged until now.
4. The general agreement within the Company, including
Inch, is that seniority within the section applies.
5. The acceptance of the claimant's argument will undermine
not only the position of the other worker but of other
drivers as well.
DECISION:
The Court having fully considered all of the views of the parties
expressed in their oral and written submissions does not find
grounds to amend the findings of the Rights Commissioner.
The Court accordingly rejects the appeal of the claimant.
The Court so decides.
~
Signed on behalf of the Labour Court
5th November, 1992 Tom McGrath
P.O'C./M.H. ----------------------------------
Deputy Chairman.
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Paul O'Connor, Court Secretary.