Labour Court Database __________________________________________________________________________________ File Number: CD93153 Case Number: AD9361 Section / Act: S13(9) Parties: JOHN SISK AND SONS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation No. S.T. 447/92 concerning the selection of 3 workers for lay-off.
Recommendation:
5. The Court upholds the Rights Commissioner's Recommendation.
The Court would endorse the sentiment of previous Recommendations
and Unfair Dismissal Decisions that, in the absence of last-in
first-out policies, selection of employees for termination of
employment must be objective while suited to commercial needs of
the business.
Division: Mr Heffernan Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD93153 APPEAL DECISION NO. AD6193
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
INDUSTRIAL RELATIONS ACT, 1969
SECTION 13(9)
PARTIES: JOHN SISK AND SONS LIMITED
(Represented by the Construction Industry Federation)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation No. S.T. 447/92 concerning the selection of 3
workers for lay-off.
BACKGROUND:
2. The workers concerned were employed by the Company as general
operatives on a construction site in Waterford. In November,
1992, the building was nearing completion and the 3 workers were
placed on lay-off. The Union claimed that the workers were
unfairly selected. Management rejected the claim. The issue was
referred to a Rights Commissioner for investigation and
recommendation. The Rights Commissioner investigated the dispute
on the 7th January, 1993. In his findings the Rights Commissioner
stated that the Employment Appeals Tribunal had ruled conclusively
that the 'last in first out' principle does not apply in the
Construction Industry and that it does not provide a defence in
dismissal cases. He rejected the Union's claim that the Company
penalised the workers for late attendance and absenteeism. The
Rights Commissioner also found that suitability must be a primary
consideration and only Management can decide on the suitability of
workers to be retained.
On the 3rd February, 1993 the Rights Commissioner issued his
recommendation as follows:-
"I recommend that the claim of unfair selection for lay-off
fails for the reasons advanced above."
On the 26th February, 1993 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 in Waterford on the 20th July, 1993.
UNION'S ARGUMENTS:
3. 1. The Union accepts that lay-off on a last in first out
basis is not generally applicable in the Construction
Industry. Some mechanism must be put in place to ensure that
selections for lay-off are fair. In practice the last in
first out principle is used as a yardstick and, through
consultation, agreement is reached regarding selection for
lay-off. This process did not take place in relation to the
workers concerned.
2. The Company laid off the workers concerned despite the
fact that other workers with less service/experience in the
industry were retained. Management tried to justify selection
on the basis of the workers service records rather than on the
normal custom and practice. The Company used the selection
process in a punitive manner.
COMPANY'S ARGUMENTS:
4. 1. The Company did not discriminate against the workers
concerned and in selecting them for lay-off acted in
accordance with the procedure as laid down in the Registered
Employment Agreement for the Construction Industry. This
procedure has been upheld by the Employment Appeals Tribunal
which has decided in numerous cases that the "last-in
first-out" principle does not apply in the industry.
2. The Company did not select the workers for lay off on
the basis of their personal attendance records. The selection
was made on a purely commercial basis using criteria such as
skill, value of employees' work etc. Management must retain
the right to decide as to which workers may be retained
nearing the end of a contract. The Company acted in a fair
manner and in accordance with the law and custom and practice.
DECISION:
5. The Court upholds the Rights Commissioner's Recommendation.
The Court would endorse the sentiment of previous Recommendations
and Unfair Dismissal Decisions that, in the absence of last-in
first-out policies, selection of employees for termination of
employment must be objective while suited to commercial needs of
the business.
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Signed on behalf of the Labour Court
Kevin Heffernan
4th August, 1993 ----------------
T. O'D/U.S. Chairman