Labour Court Database __________________________________________________________________________________ File Number: CD93389 Case Number: AD9394 Section / Act: S13(9) Parties: KINGSCOURT BRICK & CO. LIMITED - and - A WORKER;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's recommendation No. CW190/93.
Recommendation:
The Court having considered all of the views of the parties
rejects the appeal of the Union and confirms the recommendation of
the Rights Commissioner.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD93389 APPEAL DECISION NO. AD9493
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.
CW190/93.
BACKGROUND:
2. 1. The Company is a brick manufacturer. It is based in
Kingscourt, Co. Cavan employing between 38 and 45 workers on
a seasonal basis. The worker concerned with the dispute has
been employed by the Company since June 1988.
2. The Company occasionally lays off employees on a
temporary basis because of the seasonal nature of the work.
The worker concerned was laid off in November, 1992. In
January, 1993, he was informed by the Company that work was
available. He was unable to avail of the work and two junior
employees resumed work in his place on a day to day basis.
The worker sought leave of absence for the month of February.
It is Company policy to grant leave of absence to employees
who are laid off and who wish to seek alternative employment.
Employees' seniority is not affected by the leave of absence.
The worker agreed to contact the Company towards the end of
February regarding the availability of work on 1st March,
1993.
3. The worker reported for duty on 1st March, 1993 but was
told there was no work available at that time. The worker
felt he was being unfairly treated and that one of the junior
employees should have been laid off instead of him. The
Company disputed this saying that it had already facilitated
the worker by granting him leave of absence. The Company was
not prepared to lay off one of the junior employees. It
advised the worker that he would be next in line when work
became available.
4. The dispute was referred to the Rights Commissioner
Service on 19th May, 1993. A Rights Commissioner's
recommendation issued as follows on 25th May, 1993:
"I recommend that the Company offers and the worker accepts
one week's pay in settlement of this dispute".
(The worker was named in the recommendation)
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.
UNIONS ARGUMENTS:
3. 1. The worker concerned understood from the Company that
work would be available for him when he reported back after
his leave of absence. The Company refused to replace one of
the junior employees with the worker. The worker did not
commence work until 10th May, 1993 and as a result lost
#1,300. The worker should have replaced one of the junior
employees who had benefited from the worker's leave of
absence.
2. The Company did not advise the worker that he would only
be allowed to resume duty if there was sufficient work for
him and the two junior employees. This was never agreed as
the worker would then be unsure when he could resume work.
The Company should have made it clear to the worker what the
situation was regarding his returning to work.
COMPANY'S ARGUMENTS:
4. 1. The worker had been laid off since November, 1992. When
work became available in January 1993, the worker was
unavailable and asked for one month leave of absence in
February. The worker was advised to check with a supervisor
regarding the availability of work on 1st March. Rather than
confirming the work situation he reported for work on 1st
March, 1993. The worker was advised that there was no work
available but that when work became available he would be
taken on. He was also assured that his seniority would not
be affected.
2. The worker made unfounded allegations that he was
unfairly treated. The Rights Commissioner in his findings
stated:
"I consider that the Company has established that it is
normal custom and practice that when workers make themselves
available for work after a period of "leave of absence" then
they have no right to replace more junior workers taken on
from lay off during such leave of absence".
This has long been Company policy and the worker was treated
fairly at all times.
DECISION
The Court having considered all of the views of the parties
rejects the appeal of the Union and confirms the recommendation of
the Rights Commissioner.
The Court so decides.
~
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 by addressed to
Mr. Ciaran O'Neill, Court Secretary.