Labour Court Database __________________________________________________________________________________ File Number: CD94263 Case Number: LCR14601 Section / Act: S26(1) Parties: GYPSUM INDUSTRIES - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Dispute concerning two issues:- 1. Claim on behalf of a temporary worker for severance pay ; 2. Claim on behalf of a grade 3 clerical worker for re-grading.
Recommendation:
The Court, having considered all of the views of the parties as
expressed in their oral and written submissions, finds as
follows:-
1. SEVERANCE PAY CLAIM :
That grounds have not been adduced to warrant concession of
the claim.
The Court, accordingly, rejects the claim.
2. GRADING CLAIM :
The Court does not consider, given all the circumstances of
this case, that grounds have been shown to warrant the
upgrading of the employee's position.
The Court, accordingly, rejects the claim.
Division: MrMcGrath Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD94263 RECOMMENDATION NO. LCR14601
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
PARTIES:
GYPSUM INDUSTRIES
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Dispute concerning two issues:-
1. Claim on behalf of a temporary worker for severance pay ;
2. Claim on behalf of a grade 3 clerical worker for
re-grading.
BACKGROUND:
2. CLAIM 1 :
The dispute concerns a worker who was employed by the Company
as a relief general operative, on a temporary basis, between
September, 1978 and August, 1984. During this period, he
worked a total of approximately 200 weeks. In April, 1985,
when offered 1 week's work, he allegedly advised the Company
that he was working elsewhere and would not require further
work. The Union disputes this and claims that the worker
never resigned from the Company. The Company's position is
that he last worked for the Company in 1984 and it had not
heard from him until the claim for severance pay arose last
year. The Company further claims that, as there is no
contract of employment, the worker is not covered by the
definition of "worker" under the 1990 Industrial Relations
Act.
CLAIM 2 :
The dispute concerns a worker, a Grade 3 Clerk, who was
transferred from the credit-control area to a new position
involving invoicing/computer work, in early 1992. He is
seeking to be re-graded from Grade 3, clerical staff scale,
to Grade 4, which was the grade held by his predecessor. The
Company rejected the claim on the grounds that the worker
'does not perform the same duties as his predecessor'. The
Company indicated its willingness to have the worker's job
examined under the Group's Job Evaluation Scheme.
Both of the above claims were the subject of numerous
discussions and four conciliation conferences were held under
the auspices of the Labour Relations Commission, during the
course of 1993. The dispute was referred to the Labour
Court, on the 4th of May, 1994, in accordance with Section
26(1) of the Industrial Relations Act, 1990. The Court
investigated the dispute on the 12th of October, 1994, the
earliest date convenient to both parties.
CLAIM 1, SEVERANCE PAY :
UNION'S ARGUMENTS:
3 1. When offered work in April, 1985, the worker was
informed that he would be required for a duration of 3/4
days. He declined the offer because of its short
duration and he indicated that he wished to remain with
his then current employer in Navan. He did not resign
or voluntarily discontinue the long-running arrangement,
but simply declined one very short period of work.
2. He was not offered further work nor was he informed by
the Company that he was no longer in contention for
temporary work.
3. The worker realised that he was unlikely to be recalled
when, in 1992, he learned that two other temporary
workers had claimed and obtained severance payments from
the Company.
4. Those payments were made, according to the Company,
because of prolonged periods between spells of
employment; the Company had effectively dealt with the
absenteeism problem which had given rise to the need for
cover.
5. The worker had established seniority rights over and had
longer service than the two who were granted severance
pay.
6. Although the Company has claimed that the claimant is
not a "worker" within the meaning of the 1990 Industrial
Relations Act, it is clear that he did not resign his
job as temporary worker in April, 1985.
COMPANY'S ARGUMENTS:
4. 1. The worker voluntarily severed his connection with the
Company in April, 1985.
2. The Company did not enter into any arrangement whereby
the worker was granted some form of leave of absence.
3. It is unacceptable to claim that the worker, who resides
close to the Kingscourt plant, was awaiting recall from
1985 to 1992. Temporary employees were engaged on
several occasions (details supplied) during that period
and it stretches credibility to accept that he was
unaware of this and patiently spent 7 years awaiting
communication from the Company.
4. If the negotiation of ex-gratia severance terms for two
former long-term temporary employees, in 1992, was the
prime catalyst prompting the current claim, why did the
claimant not raise his claim in 1990? Then, severance
terms were negotiated for former temporary employees
who, unlike the claimant had not declined temporary
employment but for whom there was no prospect of future
temporary work.
5. There is a doubt that, after a lapse of 7 years, that
the claimant can be deemed to be an 'employee' within
the meaning of the Industrial Relations Act, 1990.
CLAIM 2, RE-GRADING:
UNION'S ARGUMENTS:
5. 1. Since his transfer to the Invoicing Department, the
worker effectively has subsumed all of the duties of the
departed Computer Operator, who was a Grade 4.
2. Following the redundancy of two employees in the
Invoicing Department, the Company is saving in excess of
#700 per week, yet it will resists an upgrading claim
that would cost only #39.63 per week.
3. There would be no repercussive claims should the
upgrading claim be upheld.
COMPANY'S ARGUMENTS:
6. 1. The worker's current duties and specialist skills
requirement are not similar to those of the Grade 4
computer operator/programmer position on which his claim
is based, and which became redundant when requirement
for such a position ended.
2. His duties are not more onerous than those of workers in
a variety of Grade 3 positions.
3. Concession of the claim would result in a distortion of
the grading structure whereby the Invoicing section
would have two Grade 4 positions.
4. If the position was to be re-graded, it would represent
a promotional opportunity for other Grade 3 clerks with
similar experience. The personal re-grading of the
claimant would not be automatic.
RECOMMENDATION:
The Court, having considered all of the views of the parties as
expressed in their oral and written submissions, finds as
follows:-
1. SEVERANCE PAY CLAIM :
That grounds have not been adduced to warrant concession of
the claim.
The Court, accordingly, rejects the claim.
2. GRADING CLAIM :
The Court does not consider, given all the circumstances of
this case, that grounds have been shown to warrant the
upgrading of the employee's position.
The Court, accordingly, rejects the claim.
~
Signed on behalf of the Labour Court
1st November, 1994 Tom McGrath
M.K./D.T. _______________
Deputy Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Michael Keegan, Court Secretary.