AD9479

Labour Court Database __________________________________________________________________________________ File Number: CD94286 Case Number: AD9479 Section / Act: S13(9) Parties: A. O. SMITH ELECTRIC MOTORS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION

Subject:
Appeal by the Union against Rights Commissioner's Recommendation No. ST37/94.

Recommendation:
With regard to the substantive issue the Court, having
considered all of the views expressed by the parties in their
oral and written submissions, finds that grounds have not
been adduced to warrant amendment of the Rights
Commissioner's recommendation.

Accordingly, the Court upholds the recommendation and rejects
the appeal of the employee.

The Court so decides.

Division: MrMcGrath Mr McHenry Mr Walsh

Text of Document__________________________________________________________________

CD94286 APPEAL DECISION NO. AD7994

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES:
A. O. SMITH ELECTRIC MOTORS
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)

AND

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION



SUBJECT:

1. Appeal by the Union against Rights Commissioner's
Recommendation No. ST37/94.



BACKGROUND:

2. 1. The Company, which manufactures electric motors to
order, has been established in Bray, Co. Wicklow since
1976. It employs 150 workers. The worker was employed
by the Company in 1988. He was transferred to the dye
cast operation in September, 1991 at a grade 5 rating.
On 26th July, 1993 he was transferred to the hone
operations to a grade 4 rated job. The worker retained
his grade 5 level.

2. On 3rd June, 1993 the worker burnt his foot at work.
Following holidays (details supplied) the worker
returned to work on 15th June. During the day he
complained of pains in his foot and he was sent to the
doctor who certified him unfit for work for six weeks.
On 13th July, the Company informed the worker that he
was being placed on the inactive list in accordance with
the Company/Union Agreement. This meant that while the
worker would retain his job with the Company, there was
no guarantee that he would be able to return to his
previous position. The worker was replaced in the dye
cast operation on 19th July.




3. The worker returned to work on 26th July, 1993 and he
was assigned to the hone operation. The worker
submitted a grievance through the Company's grievance
procedures concerning his transfer and consequent loss
of income. The dispute was not resolved and it was
referred to the Rights Commissioners Service. A Rights
Commissioner's investigation took place on 21st March,
1994 and the recommendation as follows was issued on
14th April, 1994:-

"There is a very strong Trade Union presence in this
employment (given by previous experiences with it
over many years) and it is not reasonable to impute
such base motives to the Company who frankly would
not get away with such practices. Frankly I am
appalled at the level of litigation which has been
exposed and I would fear for Irish industry
generally, if such a pattern was wide spread. On the
substantive issue I recommend that the claim of the
Union fails as the Company was covered under two
clauses for its action."

5. By letter dated 11th May, 1994, the Union appealed the
Rights Commissioner's Recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act,
1969. The Labour Court heard the appeal on 27th
October, 1994.

6. By letter dated 26th October, 1994 the Company
questioned the validity of the appeal under the terms of
Clause 8(3) of the Company/Union Agreement which
states:-

"The Company and the Union agree that should the
grievance remain unresolved they will jointly process
the matter through conciliation and if agreement is
not reached, shall jointly refer the matter either to
the Rights Commissioner or to a full hearing of the
Labour Court and both parties agree that they will
implement the Recommendation that comes from the
Rights Commissioner or the Labour Court."

It was the Company's position that under the terms of
the clause both parties were obliged to implement the
Rights Commissioner's Recommendation and that an appeal
to the Labour Court was precluded.




7. The Union's position was that the Company's letter was
unhelpful to good industrial relations within the
Company. The dispute was referred to the Labour
Relations Commission with the intention of having it
dealt with by the Labour Court in the event of a
settlement not being found. In an effort to be helpful,
the Industrial Relations Officer, who would probably
have been unaware of Clause 8(3), referred the dispute
to a Rights Commissioner. It would have been clearly
understood by the Industrial Relations Officer that an
avenue of appeal existed.



UNION'S ARGUMENTS:

3. 1. As a result of an accident at work, the worker has been
penalised by a fall in income of up to #50.00 per week
since July 1993. The worker and his family have been in
a difficult financial position over the last fifteen
months. The worker has almost two years' service in the
Dye Cast Operation.

2. The Union is not challenging the Company's rights to
manage. There is, however, an obligation on the Company
to make its decisions in a fair and reasonable manner.
It would have been fair and reasonable to fill the
worker's position on a temporary basis pending his
return to work. This would have been normal practice
within industry generally.

3. The Company had other mechanisms open to it to deal with
the worker's absence (details supplied). The Union is
concerned that the Company chose to transfer the worker
permanently to resolve a very short term problem. The
Union is aware of many other workers who returned to
their original positions following sick leave.



COMPANY'S ARGUMENTS:

4. 1. The worker was transferred when the Company was facing
serious market difficulties and was operating a three
day working week. Short-time was removed because the
Company won back business that had particularly tight
lead times. In these circumstances it was vital that
the Company would have someone in the Dye Cast Operation
who could guarantee that the production targets would be
met. At the time of the transfer, the Company was only
aware that the worker was on sick leave.




2. The worker is a former shop steward and is aware that
his transfer was in accordance with agreed procedures.
The worker is challenging the Company's fundamental
right to require interchangeability within the
workforce. This right is at the core of the Company's
ability to compete, progress and in turn secure
employment.

3. The Company has an established practice of transferring
workers to suit business requirements. In its history,
the Company has never experienced a similar problem to
that presented by the worker. The Company has offered
the worker a number of options, all of which he has
rejected. The Company accepts the Rights Commissioner's
Recommendation.



The Court's Response on Employer's Letter


5. 1. The Court considered the issue of the Company/Union
agreement. The court recognises the right of individual
employees to refer disputes to a Rights Commissioner and
to appeal the findings to the Labour Court in accordance
with the provisions of the Industrial Relations Acts.

2. In the case before the Court it was noted that the
employee wished to proceed with the matter to the Labour
Court but was diverted in this course by the suggestion,
of the Industrial Relations Officer, that the issue
should be dealt with by the Rights Commissioner. It is
the view of the Court that the Industrial Relations
Officer was not aware of the terms of the Company/Union
agreement.

3. However, the Court wishes to point out that the Company
and the Union by agreement have accepted a procedure for
the resolution of disputes which includes referring
issues to either a Rights Commissioner or the Labour
Court but not both and implementing the findings of the
3rd party.

4. The Court is of the view that for the future employees
pursuing disputes should be advised of the options
available under the Company/Union agreement and the
necessity to accept and implement the findings of the
third party chosen.




5. They should be further advised that if on deciding to
pursue a matter through a Rights Commissioner that the
Company or Union will object to such procedure unless it
is clearly indicated that the findings will be
implemented.



DECISION:

With regard to the substantive issue the Court, having
considered all of the views expressed by the parties in their
oral and written submissions, finds that grounds have not
been adduced to warrant amendment of the Rights
Commissioner's recommendation.

Accordingly, the Court upholds the recommendation and rejects
the appeal of the employee.

The Court so decides.
~

Signed on behalf of the Labour Court


5th December, 1994 Tom McGrath
J.F./D.T. _______________
Deputy Chairman


Note
Enquiries concerning this Recommendation should be addressed to
Mr. Jerome Forde, Court Secretary.