Labour Court Database __________________________________________________________________________________ File Number: CD9438 Case Number: AD9434 Section / Act: S13(9) Parties: CAHILL MAY ROBERTS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. ST 339/93.
Recommendation:
Having considered the detailed submissions made by the appellant
and the investigation carried out by the Rights Commissioner the
Court has come to the conclusion that the recommendation No.
ST 339/93 is reasonable and fair in the circumstances and
accordingly should be upheld.
The Court therefore upholds the recommendation, rejects the appeal
and so decides.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD9438 APPEAL DECISION NO. AD3494
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
CAHILL MAY ROBERTS
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. ST 339/93.
BACKGROUND:
2. The worker concerned commenced employment with the Company as
a casual worker on the 15th August 1988. He has worked on a
regular basis since 1990 on either a full or part-week basis
covering long-term illnesses and holidays. The Union claims
that the worker should have been a permanent pensionable
employee and because of his stated position (casual worker)
he has been denied certain benefits. Management rejected the
claim. The dispute was referred to a Rights Commissioner for
investigation and recommendation. On the 8th December 1993,
the Rights Commissioner issued his recommendation as
follows:-
" (a) I recommend that his claim for Christmas Bonus in
1989 fails as he was only a casual part time worker
at the relevant time.
(b) I will give him the benefit of the doubt in
relation to six of the days he alleges he was out
sick and I recommend he is paid for these.
(c) I recommend that his claim for the 5 days injury
leave fails until he substantiates the claim by the
production of the Document he claims is in the
possession of the Social Welfare Department.
(d) I recommend that his claim for eleven days lost
work fails as given his status no reasonable basis
exists for concession of the claim.
(e) I recommend that the Company pays him an additional
three days pay at foot of the failure to allow him
to maximise his Social Welfare Benefit.
(f) I recommend that the Company favourably considers
him for the next permanent pensionable post and
that in the interim he gets first call on all hours
available."
On the 19th January, 1994, the Union appealed the
recommendation to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal
in Limerick on the 26th April, 1994.
UNION'S ARGUMENTS:
3. 1. Since March, 1989 the employee concerned has worked on a
continuous basis. Although he did not work for a full
week through the year he worked some days every week.
The worker was given a document in October, 1991,
outlining his conditions of employment and outlining his
entitlements to sick leave, pension scheme etc. This
document applied to permanent pensionable employees in
the Company (details supplied to the Court).
2. The Union has endeavoured to establish the worker's
permanent status on numerous occasions without success.
The Company submitted a document to the Rights
Commissioner which was given to the worker concerned in
March, 1992 and defined him as a temporary worker in
contravention to that given to him in October, 1991.
3. The worker's status should be defined as permanent and
pensionable and all conditions for other permanent
employees should be applied to him. The worker feels
that because of his temporary status he has been treated
unfairly by the Company in a number of matters.
(Details supplied to the Court).
COMPANY'S ARGUMENTS:
4. 1. The worker concerned, together with a number of others,
is a casual worker in the Company. He was not given
permanent and pensionable employment in 1991 and the
document produced by the Union does not contain the
worker's name. In March, 1992 the Company, on request,
provided the worker with a statement of his terms and
conditions of employment. This document made no
reference whatsoever to pension scheme eligibility which
applies only to permanent workers.
2. The Company has explained the worker's status in the
employment to him on numerous occasions. It has
adequately dealt with the issues raised at the Rights
Commissioner's hearing and has accepted and implemented
his Recommendation. If and when a vacancy for a
permanent position arises the Company will favourably
consider the worker for such a position.
DECISION:
Having considered the detailed submissions made by the appellant
and the investigation carried out by the Rights Commissioner the
Court has come to the conclusion that the recommendation No.
ST 339/93 is reasonable and fair in the circumstances and
accordingly should be upheld.
The Court therefore upholds the recommendation, rejects the appeal
and so decides.
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Signed on behalf of the Labour Court
6th May, 1994 Evelyn Owens
T.O.D./M.M. _______________
Deputy Chairman