Labour Court Database __________________________________________________________________________________ File Number: CD93554 Case Number: AD9398 Section / Act: S13(9) Parties: IARNROD EIREANN - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation No. DC62/93.
Recommendation:
Having considered the submissions of the parties, the Court does
not find grounds that would justify alteration of the Rights
Commissioners Recommendation in this case. Accordingly, that
Recommendation stands.
The Court so decides.
Division: Mr Heffernan Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD93554 APPEAL DECISION NO. AD9893
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IARNROD EIREANN
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
DC62/93.
BACKGROUND:
2. 1. On Sunday 18th April 1993, the Company required a
fork-lift driver to perform work at the Portlaoise Sleeper
and Rail depot. The work involved the removing of a girder
from the roof of the sleeper factory and the fitting of 2 new
girders in the ceiling of the factory. The operation
required the lifting of both men and girders into position to
weld, grind and bolt, with tight tolerances.
2. The Company selected the most experienced driver of the
four full time drivers at the depot. The Company claimed
that the most experienced driver was necessary as the
fork-lift was required to operate in a confined space which
made the manoeuvre very difficult.
3. The Union made a claim for compensation for the loss of
"Sunday duty" on behalf of another worker. The Company
rejected the claim on the basis that the worker had been
driving the fork-lift on a full-time basis for only 2 weeks
prior to the Sunday.
4. The claim was referred to the Rights Commissioners
Service and an investigation took place on 31st August, 1993.
The following Recommendation DC62/93 was issued on 17th
September, 1993:-
"Having regard to the short period during which the
claimant had been performing full-time fork-lift duties,
the Company's explanation of the complex nature of the
exercise on 18th April 1992, and the subsequent level of
Sunday Duty enjoyed by the claimant, I am satisfied that
the Company did not deliberately discriminate against
him and I therefore recommend that his claim for payment
for the date in question, fails.
Furthermore, however, as it is quite apparent that this
dispute arose as a result of a perception of a
selectivity policy prevailing in regard to Sunday Duty
rostering at Portlaoise, in order to obviate any further
difficulties in this area, in the future, I recommend
that the Company should now fulfil their previous
undertaking to the Union and arrange to place the Sunday
Duty Rota, on permanent display at the location".
The worker was named in the Recommendation.
5. The Union appealed the Recommendation to the Labour
Court on 28th September, 1993 under Section 13(9) of the
Industrial Relations Act, 1969. The Labour Court heard the
appeal on 12th November, 1993 (the earliest date suitable to
both parties).
UNION'S ARGUMENTS:
3. 1. The worker who was overlooked for the "Sunday" duty is a
certified fork-lift driver with a heavy goods vehicle
licence. There is no doubt that the worker was well
qualified for the work in question.
2. The Company claims that the work required the driving
skills of the most experienced driver. The Union has
recently ascertained that most of the work (details supplied)
was carried out on Saturday by a driver with less experience
than the worker. The Rights Commissioner was unaware of this
fact and it should materially alter the rationale for his
Recommendation.
COMPANY'S ARGUMENTS:
4. 1. The work in question required the most experienced
driver and the Company was obliged to roster him. The work
was specialised and once-off in nature. The claimant did not
have the necessary experience.
2. The worker had no claim on the Sunday work in question
as he had worked the previous Sunday and he also worked the
following Sunday. In examining the Sunday rosters over a
period, it is clear that the worker has been more than fairly
treated. The worker has not suffered a loss and in line with
previous Labour Court Recommendations (details supplied) no
compensation is merited.
DECISION:
Having considered the submissions of the parties, the Court does
not find grounds that would justify alteration of the Rights
Commissioners Recommendation in this case. Accordingly, that
Recommendation stands.
The Court so decides.
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Signed on behalf of the Labour Court
23rd November, 1993 Kevin Heffernan
J.F./A.L. _______________
Chairman