Labour Court Database __________________________________________________________________________________ File Number: CD92521 Case Number: AD92221 Section / Act: S13(9) Parties: LEP INTERNATIONAL LIMITED - and - MANUFACTURING SCIENCE FINANCE |
Appeal by the Union against Rights Commissioner's Recommendation No. B.C. 348/91 concerning compensation for loss of continuity of employment.
Recommendation:
5. The Court in the light of the submissions of the parties
considers the Company could have at an early date made clear to
the staff and particularly before the expiry of the period of
notice of withdrawal of the Schenkers Agency the implications for
their employment.
Notwithstanding the absence of this approach the Court finds no
grounds to amend the recommendation of the Rights Commissioner.
The Court accordingly rejects the appeal of the claimant.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD92521 APPEAL DECISION NO. AD22192
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: LEP INTERNATIONAL LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
MANUFACTURING SCIENCE FINANCE
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. B.C. 348/91 concerning compensation for loss of
continuity of employment.
BACKGROUND:
2. The worker concerned commenced employment with the Company in
January, 1989, as a receptionist/telephonist. Prior to May, 1991,
the Company which is involved in the freight forwarding business
had an agreement with a German Group named Schenker. Schenker
operated as a minority subsidiary of Lep which enabled Lep to
trade under the Schenker name. Under the agreement Schenker
appointed one of its German based staff as general manager in
Ireland. In March, 1990, the worker concerned was transferred to
the Schenker import section. At the end of 1990, Schenker's
parent Company was privatised and the new Company decided to
set-up the Irish subsidiary as a private office, no longer
associated with, or working out of Lep. On 15th May, 1991,
Schenker gave Lep three months notice of its intention and the
transfer proceeded accordingly. The worker concerned resigned
from her position on 2nd August, 1991. The Union claims that the
worker resigned from her position because of the uncertainty
caused over the ending of the Schenker agreement. The Union
submitted a claim for compensation for the loss of continuity of
employment. The Company rejected the claim. The Union referred
the matter to a Rights Commissioner for investigation and
recommendation. On 10th April, 1992, the Rights Commissioner
recommended as follows:
"In the light of the above I must hold that the claim made by
the Trade Union must fail and I must recommend accordingly".
The Rights Commissioner's recommendation was rejected by the Union
who appealed it to the Labour Court on 27th April, 1992. The
Labour Court heard the appeal on 20th October, 1992.
UNION'S ARGUMENTS:
3. 1. The worker concerned was a permanent employee of Lep
International prior to her departure from the Company which
was brought about because of the uncertainty caused by the
change in the agency agreement with Schenker.
2. The impending loss of the Schenker business caused concern
to the worker concerned. She was the only Lep employee
engaged full-time on Schenker business.
3. The worker concerned was advised on 15th May, 1991, that
there was a doubt about her job. No offer of alternative
employment was made by the Company in the period 15th May,
1991, to 2nd August, 1992, although a vacancy for a
receptionist/telephonist existed at that time.
4. The worker lost continuity of employment through no fault
of her own and, therefore, should be compensated.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned resigned her position with Lep to
take up a position with Schenker. The Company is at a loss to
understand the precise nature of the worker's claim and
particularly how it can be held liable for any aspect of her
employment or her resignation.
2. The worker resigned. The reference which she was given
which she accepted, testifies to this effect. When the worker
went to Schenker there was speculation regarding
rationalisation at Lep's offices. Redundancies had taken
place earlier in 1991 and, while speculation may have been
understandable, particularly in view of the loss of the
Schenker agency, in reality it was ill-founded as no further
redundancies occurred.
3. Two other staff members employed on Schenker work are
still employed by Lep; one Lep employee has moved to Schenker,
he has been replaced in Lep. The position regarding the loss
of Schenker has, in fact, had no effect whatsoever on the
staffing in Lep. Thus, any claim which the worker feels that
she may have regarding redundancy is clearly unfounded. It
was not reasonable of her to presume that she would have been
made redundant as the evidence is clearly to the contrary.
4. The worker concerned is at no financial loss following her
departure from Lep. It appears she is better off financially
as a result of her move. The Rights Commissioner's
recommendation refers to the worker securing "an attractive
position immediately on leaving Lep".
DECISION:
5. The Court in the light of the submissions of the parties
considers the Company could have at an early date made clear to
the staff and particularly before the expiry of the period of
notice of withdrawal of the Schenkers Agency the implications for
their employment.
Notwithstanding the absence of this approach the Court finds no
grounds to amend the recommendation of the Rights Commissioner.
The Court accordingly rejects the appeal of the claimant.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
______________________
16th November, 1992. Deputy Chairman.
F.B./J.C.
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Fran Brennan, Court Secretary.