Labour Court Database __________________________________________________________________________________ File Number: CD92620 Case Number: AD92224 Section / Act: S13(9) Parties: C.P.C. FOODS (IRELAND) LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's recommendation No. S.T. 272/92 concerning the transfer of a worker.
Recommendation:
5. Having considered the submissions made by the parties at the
hearing the Court has come to the conclusion that the Rights
Commissioner was wrong to uphold the employee's objection to her
transfer to the warehouse in J.F.K. Industrial Estate.
Furthermore, his proposal to recommend compensation for losses
sustained as a result of the move was in error insofar as it did
not take full account of all the circumstances in the case.
The Court therefore decides that the recommendation should not
stand.
However the Court is strongly of the opinion that in selecting the
worker concerned for transfer insufficient consideration was given
to the particular inconvenience she would suffer - consideration
which the Court understands would normally be given by the
Company. The Court therefore recommends that the Company take the
first available opportunity to rectify the situation to transfer
the worker back to the Inchicore premises.
Division: Mr O'Connell Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD92620 APPEAL DECISION NO. AD22492
INDUSTRIAL RELATIONS ACT, 1946 TO 19990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: C.P.C. FOODS (IRELAND) LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
recommendation No. S.T. 272/92 concerning the transfer of a
worker.
BACKGROUND:
2. 1. The Company manufacture a range of foodstuffs in their
plant at Inchicore. It has a distribution unit in the J.F.K.
Industrial estate at Bluebell Dublin 24. The Company took
over Goodalls Ireland Limited in 1989. A rationalisation of
the business of the 2 companies took place and in May, 1992, 4
temporary vacancies arose at the Company's distribution unit.
2. The vacancies were first advertised within the permanent
workforce and one worker was assigned. Four temporary workers
from the Company's manufacturing unit were then selected for
interview. Three workers were subsequently assigned to the
distribution unit.
3. One of the workers objected at her selection for interview
on the basis of her seniority. The claim was referred to a
Rights Commissioner for investigation on the grounds that the
worker should be returned to the manufacturing unit because of
her seniority with the Company. The worker has been made
permanent since her transfer to the distribution unit.
4. A Rights Commissioner's investigation of the claim took
place on 31st August, 1992. The following recommendation S.T.
272/92 issued on 15th September, 1992:
"I recommend that the claimant accepts the transfer on
the two following conditions:
1. That she will receive an offer of the first
available permanent job in Island Bridge.
2. That she will receive compensation for the
reasonable losses incurred through her inability to
work the overtime at J.F.K.I.E. on certain nights
due to her personal security problem. The loss
should be calculated by comparing her gross earnings
for the last 12 months with those of the next 12
months. I am prepared to help with this exercise at
the appropriate time".
5. The Rights Commissioner's recommendation was appealed by
the Company on 1st October, 1992 under Section 13(9) of the
Industrial Relations Act, 1969. A Labour Court investigation
took place on 9th November, 1992.
COMPANY'S ARGUMENTS:
3. 1. The claim which was before the Rights Commissioner for
consideration was that the worker should be offered a position
at the Company's manufacturing unit in Inchicore. The Rights
Commissioner gave the worker the right to the first available
position. He went beyond his brief in awarding compensation
to the worker because of her unavailability to work overtime
at the distribution unit. This was not the claim before the
Rights Commissioner and it allows the worker to create a loss
of earnings by not working overtime because of her perceived
security threat.
2. The Rights Commissioner's recognition of a perceived
security threat sets a dangerous precedent. It could lead to
repercussive claims from other workers (details supplied).
In addition the formula produced for the calculation of loss
of earnings takes no account of the reduction in the overtime
available to workers at the manufacturing unit or the reasons
why a high level of overtime was available in the previous 12
months (details supplied). The Rights Commissioner was also
made aware that an off-site allowance was payable to workers
in the distribution unit.
3. The Company's submission to the Rights Commissioner
centred on the Company's right to choose the most suitable
worker for the position. The claimant was deemed the most
suitable at the time of selection. It is the practice of the
Company to take the suitability of a worker for a position
into account. The Rights Commissioner's recommendation goes
further than to address the worker's claim without any
consideration of the key question of suitability.
UNION'S ARGUMENTS:
4. 1. The Union has an agreement on seniority with the Company.
This agreement covers both of the Company's plants. The
worker who was transferred was one of the 3 most senior
workers in the Company. She had continuous service since 1989
and had been employed intermittently for a considerable period
before that. The worker was forced to transfer and in those
circumstances she should not suffer a loss. This was
recognised by the Rights Commissioner in his recommendation.
2. The Union has accepted by agreement that wokers may have
to tranfer from one site to another in specific circumstances.
In this case a more junior worker should have been transferred
to the distribution unit. The transfer has resulted in an
income loss for the worker due to her fears for her own
personal security. The transfer of the worker has breached
the agreement of 19th May, 1992 (details supplied) on
seniority.
3. The worker did not apply for a position at the
distribution unit. The worker did not seek to be interviewed.
It is unprecedented for the Company to interview temporary
workers on a seniority list. The woker has suffered monetary
loss and personal inconvenience resulting from her forced
transfer. The worker's difficulty was recognised by the
Rights Commissioner and its recommendation is acceptable to
the Union.
DECISION:
5. Having considered the submissions made by the parties at the
hearing the Court has come to the conclusion that the Rights
Commissioner was wrong to uphold the employee's objection to her
transfer to the warehouse in J.F.K. Industrial Estate.
Furthermore, his proposal to recommend compensation for losses
sustained as a result of the move was in error insofar as it did
not take full account of all the circumstances in the case.
The Court therefore decides that the recommendation should not
stand.
However the Court is strongly of the opinion that in selecting the
worker concerned for transfer insufficient consideration was given
to the particular inconvenience she would suffer - consideration
which the Court understands would normally be given by the
Company. The Court therefore recommends that the Company take the
first available opportunity to rectify the situation to transfer
the worker back to the Inchicore premises.
~
Signed on behalf of the Labour Court
John O'Connell
___________________
23rd November, 1992. Deputy Chairman.
J.F./J.C.