Labour Court Database __________________________________________________________________________________ File Number: CD92780 Case Number: AD9356 Section / Act: S13(9) Parties: BUS EIREANN - and - NATIONAL BUS AND RAIL UNION |
Appeal against Rights Commissioner's Recommendation No. B.C.354/92 regarding the seniority of a driver at Galway Depot.
Recommendation:
5. The Court has fully considered the views of the parties as
expressed in their oral and written submissions.
The Court is of the view that the Company was not in error in
considering the employee was suitable for further employment as a
driver.
The Court also considers that the Company was entitled to take
account of the employee's work record during the season when
deciding on his suitability and his position on the panel for
further employment as a driver.
The Court notes that the panels are discussed between the parties
and that suitability is decided after one period of seasonal work.
In view of the above the Court upholds the Rights Commissioner's
Recommendation and rejects the appeal.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD92780 APPEAL DECISION NO. AD5693
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: BUS EIREANN
and
NATIONAL BUS AND RAIL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
B.C.354/92 regarding the seniority of a driver at Galway Depot.
BACKGROUND:
2. 1. The worker was recruited as a seasonal driver on 27th
July, 1991. He was placed third on a panel of 8 seasonal
drivers recruited in 1991. At the end of the season all eight
drivers were let go as there were no permanent vacancies at
the time.
2. The Union was informed at the end of the 1991 season that
the worker had lost two places on the seniority list for the
1992 season. The reason given was that his performance was
deemed to be less than satisfactory (details supplied). The
issue was taken up with the Company at the time but the
decision was unchanged.
3. The worker was taken onto the Company regular staff in
June, 1992. The two other workers had been given permanent
status before him and retained higher seniority places. The
dispute was referred to the Rights Commissioners' service and
a Rights Commissioner's investigation took place on 15th
October, 1992. The Rights Commissioner's recommendation as
follows was issued on 16th November, 1992:
"In the light of the above I must recommend in favour of
the Company".
4. The Rights Commissioner's Recommendation was appealed to
the Labour Court by the Union by letter dated 11th December,
1992. The Labour Court heard the appeal on 23rd June, 1993
(the earliest date suitable to the parties).
UNION'S ARGUMENTS:
3. 1. The issue of seniority is extremely important to the
worker as it regulates the type of work he does and his place
of work for the duration of his employment. The worker lost
his place of seniority on the issue of suitability. The Union
believes that the issue of suitability is open to the practice
of discrimination. It is for this reason that seasonal staff
are re-employed on the basis of their seniority. If a worker
is unsuitable, he/she will not be re-employed.
2. If the worker was involved in a breach of any employment
regulations, he should have been dealt with under the
Disciplinary Agreement. There is no provision for loss of
seniority in that Agreement (details supplied). The Seniority
Agreement states inter alia that a worker's seniority is the
commencing date of the last continuous period of his
employment in the grade. In the worker's case this should be
the end of the 1991 season on the 27th May, 1991 when he was
engaged. The worker should be allowed his proper place on
seniority.
COMPANY'S ARGUMENTS:
4. 1. The Company is entitled to determine that drivers are
suitable to a lesser or greater degree as well as deeming them
unsuitable. There are precedents (details supplied) for the
Company deciding on the basis of overall performance to
relegate a driver to a lower position on the seniority list
for the following year or to drop him/her completely.
2. In considering the seniority of drivers for permanent
employment, the criterion is the commencing date of the last
period of continuous employment in the grade. In this case,
for the 1992 season, there were 2 drivers re-engaged before
the worker. These drivers must therefore be placed higher on
the permanent seniority list.
DECISION:
5. The Court has fully considered the views of the parties as
expressed in their oral and written submissions.
The Court is of the view that the Company was not in error in
considering the employee was suitable for further employment as a
driver.
The Court also considers that the Company was entitled to take
account of the employee's work record during the season when
deciding on his suitability and his position on the panel for
further employment as a driver.
The Court notes that the panels are discussed between the parties
and that suitability is decided after one period of seasonal work.
In view of the above the Court upholds the Rights Commissioner's
Recommendation and rejects the appeal.
The Court so decides.
~
Signed on behalf of the Labour Court
_______________________
Tom McGrath
22nd July, 1993. Deputy Chairman.
J.F./J.C.