Labour Court Database __________________________________________________________________________________ File Number: CD94675 Case Number: AD9530 Section / Act: S13(9) Parties: BOART LONGYEAR LIMITED - and - A WORKER;CONNOLLY SELLORS GERAGHTYS FITT |
Appeal by the worker against Rights Commissioner's Recommendation No. CW 256/94 concerning the transfer of a worker.
Recommendation:
The Court considered the written and oral submissions of both
parties. While the Court is of the view that the issue could have
been handled in a more sensitive manner by the Company, it finds
no reason to overturn the Rights Commissioner's Recommendation.
The Court rejects the appeal and upholds the Rights Commissioner's
Recommendation.
The Court so decides.
Division: Mr Flood Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD94675 APPEAL DECISION NO. AD3095
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
BOART LONGYEAR LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
A WORKER
(REPRESENTED BY CONNOLLY SELLORS GERAGHTS FITT)
SUBJECT:
1. Appeal by the worker against Rights Commissioner's
Recommendation No. CW 256.94 concerning the transfer of a
worker.
BACKGROUND:
2. 1. The Company was established in Ireland in 1960 and
employs 200 workers, in 3 divisions, in the manufacture
of percussive rock drilling equipment. It employs 140
workers in the Construction Mining and Geotechnical
Division (C.M.G.).
2. The worker joined the Company in 1980 and was employed
in the saws section of the C.M.G. from 1983 until
November 1994. The worker was absent from work on
sick-leave from 17th August, 1993 to 16th August, 1994.
During the worker's absence a re-organisation of the
stores/saw area took place. The staff complement
changed from 2 in stores, 1 in saws to one worker in
each section.
3. In the absence of the claimant on sick-leave, the extra
stores worker was transferred to the saws section. Upon
the worker's return to work, he was transferred to the
machine shop. The worker objected to the transfer and
following local discussions, the dispute was referred to
the Rights Commissioners Service for investigation and
recommendation.
4. A Rights Commissioner investigated the dispute on 2nd
September and on 26th October, 1994, the Recommendation
as follows was signed on 4th November, 1994.
"I recommend that the Union and the worker accept
the Company decision in this instance".
(The worker was named in the Rights Commissioner's
Recommendation).
5. The Recommendation was appealed by the worker to the
Labour Court by letter dated 15th November, 1994. The
Court heard the appeal in Limerick on 15th March, 1994.
WORKER'S ARGUMENTS:
3. 1. The claimant was unfairly treated when he was
transferred from a production area to a non-production
area. The transfer affected his ability to earn bonus
and put him on shift work.
2. The claimant had worked in the same section for 10
years. He was replaced by a worker who was not trained
to work the saws even though the Company had previously
trained two other workers as 'back-up' for the saws
section.
3. The Company based its decision to transfer the worker
purely on seniority. The Company's Recognition
Agreement does not state that seniority is a criterion
to be used when choosing between two workers for a re-
assignment. In another similar Rights Commissioner's
investigation, the Company argued that seniority was not
the criterion to be used and it succeeded in this
defence (details supplied).
4. In practical terms, had the claimant not been absent
from work due to illness and had he continued in his job
in the saws section, it is unlikely that he would have
been removed from his position so that it could be given
to the other worker. This would be in line with the
custom and practice in similar cases. The Company has
not acted fairly or reasonably in this instance.
COMPANY'S ARGUMENTS:
4. 1. Under the terms of the Flexibility Agreement, the
Company has the right to reassign the worker should the
requirement arise. In the circumstances where re-
structuring is also a factor, the Company's right is
even more compelling.
2. The worker was reassigned because he was the least
senior of the two people considered. The Company has
adopted a reasonable and equitable approach to the
matter. In the circumstances, the Company decided that
the fairest criterion for selection for reassignment was
seniority. This was accepted by the Rights
Commissioner.
3. The Company has acted in a fair and equitable manner in
strict accordance with the procedures laid down in the
Company/Union Agreements. A situation requiring
reassignment exists. The Company has the right to
reassign workers under the Flexibility Agreement. In
this case the Company took seniority into account.
DECISION:
The Court considered the written and oral submissions of both
parties. While the Court is of the view that the issue could have
been handled in a more sensitive manner by the Company, it finds
no reason to overturn the Rights Commissioner's Recommendation.
The Court rejects the appeal and upholds the Rights Commissioner's
Recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
5th April, 1995 Finbarr Flood
J.F./M.M. _______________
Deputy Chairman