Labour Court Database __________________________________________________________________________________ File Number: CD93388 Case Number: AD9391 Section / Act: S13(9) Parties: KINGSCOURT BRICK & CO. LIMITED - and - A WORKER;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's recommendation No.CW92/93.
Recommendation:
The Court having considered all of the issues raised by the
parties in their oral and written submissions confirms the
findings of the Rights Commissioner. The Court upholds the Rights
Commissioner's recommendation and rejects the appeal of the Union.
Division: MrMcGrath Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD93388 APPEAL DECISION NO. AD9193
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: KINGSCOURT BRICK & CO. LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
SUBJECT:
1. Appeal against Rights Commissioner's recommendation No.CW92/93.
BACKGROUND:
2. 1. The dispute concerns a dispute as to whether a worker
is a relief or full time kiln operator.
2. In August 1991 the worker concerned left his workplace
unattended without permission. When questioned about the
incident the worker admitted his fault. The Company demoted
him to the grade of general operator. The worker was absent
from work due to lay off from September 1991 to July 1992 as
a result of the demotion. It is Company policy that kiln
operators (full-time and relief) are exempt from lay-offs,
and the worker lost this ememption as a result of the
demotion.
3. The Union referred the matter to the Rights
Commissioners service in December 1991. A Rights
Commissioner's recommendation issued as follows:
"I recommend that the Company offers and the worker accepts
the sum of #400 and that the Company reviews the situation
regarding kiln work in March 1993".
(the worker was named in this recommendation).
Both parties accepted the recommendation.
4. Some time after this recommendation the Company changed
from running its kilns on oil to gas. This involved the
introduction of a new control system and control panels.
2. AD9193
5. When the worker's situation regarding kiln work was
reviewed in March, 1993, (in accordance with the Rights
Commissioner's Recommendation) the Union requested that the
worker be restored to the grade of kiln operator. The Union
contends that the worker was a full time kiln operator since
late 1990. The Company contends that the worker was always
a relief kiln operator. The dispute resulted in a second
Rights Commissioner's investigation and recommendation (No.
CW92/93) which issued on 2nd June, 1993, as follows:
"I recommend that the Union and the worker accept the
Company offer that he be restored to duty as a reserve kiln
operator with immediate effect".
6. The recommendation was appealed by the Union to the
Labour Court on 29th June, 1993, under Section 13(9) of the
Industrial Relations Act, 1969. The Labour Court heard the
appeal in Monaghan on 7th October, 1993.
UNION'S ARGUMENTS:
3. 1. The worker was a full-time kiln operator from late
1990. This view is supported by other members in the kiln
operators' group. A letter from the Company (details
enclosed) confirms that he worked for 19 consecutive weeks
as a full-time kiln operator from the time he was appointed
to that post. The worker's ensuing time spent as a general
operative (from early 1991 to August, 1991) was due to
domestic reasons when he was unable to work full time as a
kiln operator.
2. The worker admits he was wrong to have left his post in
August, 1991, but it was only for a short period. The
incident occurred at a time of personal bereavement for the
worker and his family. The incident was out of character
for the worker. The Company acknowledges this. The worker
was harshly treated for his indiscretion and suffered a
severe financial loss because of it.
COMPANY'S ARGUMENTS:
4. 1. The worker was employed as a reserve kiln operator
until August, 1991. In August, 1991, the worker left his
position when he was the only employee on duty. The worker
admitted this and the Company changed his employment status
to that of general operator.
3. AD9193
2. The decision was appealed to a Rights Commissioner who
upheld the Company's position. When the situation was
reviewed in March, 1993, the Union requested that the worker
be reinstated as a full-time kiln operator. The Company
cannot accede to the Union's request as the worker was
always a reserve kiln operator. The worker cannot be
reinstated to a position he never held.
3. The worker was offered the position of reserve kiln
operator and retraining on the new gas system. This
decision was appealed to the Rights Commissioner who again
upheld the Company's position. The worker has operated on a
number of times as a reserve kiln operator since June, 1993.
The worker is again exempt from the layoff situation due to
his position as a reserve kiln operator.
DECISION:
The Court having considered all of the issues raised by the
parties in their oral and written submissions confirms the
findings of the Rights Commissioner. The Court upholds the Rights
Commissioner's recommendation and rejects the appeal of the Union.
~
Signed on behalf of the Labour Court
16th November, 1993 Tom McGrath
C.O.N./A.L. _______________
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Ciaran O'Neill, Court Secretary.
KINGSCOURT BRICK & CO. LIMITED
The Court having considered all of the issues raised by the
parties in their oral and written submissions confirms the
findings of the Rights Commissioner ref CW190/93. The Court
upholds the Rights Commissioner's recommendation and rejects the
appeal of the Union.