AD9628

Subject:
1. Appeal by the Company against Rights Commissioner's Recommendation BC119/95. 2. 1. The worker was employed as a cleaner for three years with Maybin Industrial Clearners Ltd., at a site in Donnybrook. He was employed on two shifts - mornings and evenings - with a total of four and half hours per day - five days a week. In February, 1996, Moore Enterprises Ltd., secured the cleaning contract and replaced Maybin Industrial Clearners Ltd. 2. Moore Enterprises Ltd eliminated the morning shift (as

Recommendation:
5. It is the decision of the Court that in this instance the
5. It is the decision of the Court that in this instance the
efforts of the employer to minimise any loss incurred by the
efforts of the employer to minimise any loss incurred by the
employee as a result of the change of contract were of sufficient
employee as a result of the change of contract were of sufficient
extent to meet the obligations required under the Transfer of
extent to meet the obligations required under the Transfer of
Undertakings Regulations. Having regard however to the fact that
Undertakings Regulations. Having regard however to the fact that
an element of misunderstanding appeared to exist in relation to the
an element of misunderstanding appeared to exist in relation to the
first offer of extra hours made by the Company the Court is of the
first offer of extra hours made by the Company the Court is of the
opinion that an ex-gratia payment is warranted.
opinion that an ex-gratia payment is warranted.


Accordingly, the Court further decides that the Rights
Accordingly, the Court further decides that the Rights
Commissioner's Recommendation be amended to a payment of £300 to
Commissioner's Recommendation be amended to a payment of £300 to
the claimant.
the claimant.
~

Signed on behalf of the Labour Court

29th March, 1996 Evelyn Owens
L.W./U.S. --------------
Chairman

Division: Ms Owens Mr Keogh Mr Walsh

Text of Document__________________________________________________________________

CD9684 APPEAL DECISION NO AD2896

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



PARTIES: MOORE ENTERPRISES LIMITED

and

A WORKER
(Represented by Services Industrial Professional Technical Union)


SUBJECT:

1. Appeal by the Company against Rights Commissioner's
Recommendation BC119/95.

2. 1. The worker was employed as a cleaner for three years with
Maybin Industrial Clearners Ltd., at a site in
Donnybrook. He was employed on two shifts - mornings and
evenings - with a total of four and half hours per day -
five days a week. In February, 1996, Moore Enterprises
Ltd., secured the cleaning contract and replaced Maybin
Industrial Clearners Ltd.

2. Moore Enterprises Ltd eliminated the morning shift (as a
result of duplication) which resulted in a loss of two
hours work and a corresponding loss of income for the
worker. The Union claims that the employer is in breach
of the Transfer of Undertakings Regulations, S.I. 306, of
1980. The Regulations are there to protect employees'
rights.

3. The Company stated that it offered the worker an
alternative position on the same site with the same hours
of work which he had with his former employer but the
offer was rejected.

4. The dispute was referred to a Rights Commissioner on the
3rd August, 1995 for investigation. Following the
presentation of submissions the parties agreed to an
adjournment in order to enable the employer to consider
restoring the worker's original quota of working hours.
On the 4th September, 1995 the Company offered the worker
another position at a new location with the same hours
and remuneration as before but it was rejected.

The Rights Commissioner investigated the dispute on the
31st January, 1996 and in his recommendation BC119/95
recommended:-

"In light of the above, my recommendation is
that in extinction of the employers liability
to restore the worker to his original working
hours a payment of £1,000 should be made and
this should be accepted by him in full and
final settlement of the claim".

The Company appealed the recommendation on the 9th February, 1996
under Section 13(9) of the Industrial Relations Act, 1969.

UNION'S ARGUMENTS:

3. 1. The Rights Commissioner decided that the worker should be
compensated for the loss of earnings sustained.

2. The Transfer of Undertakings Regulations exist to protect
employees against unfair treatment by employers.

3. The worker was unfairly treated by the company when it
reduced his working hours.

COMPANY'S ARGUMENTS:

4. 1. The Company rejects the Union's claim that the worker was
unfairly treated.

2. The worker's original pattern of work had to change
because of duplication.

3. The Company offered the worker another position on the
same site with the same hours per day (4.5) but it was
rejected.

4. The Company made a second offer to the worker at a
different site with the same rates of pay and hours of
work but again it was rejected.

DECISION:

5. It is the decision of the Court that in this instance the
efforts of the employer to minimise any loss incurred by the
employee as a result of the change of contract were of sufficient
extent to meet the obligations required under the Transfer of
Undertakings Regulations. Having regard however to the fact that
an element of misunderstanding appeared to exist in relation to the
first offer of extra hours made by the Company the Court is of the
opinion that an ex-gratia payment is warranted.

Accordingly, the Court further decides that the Rights
Commissioner's Recommendation be amended to a payment of £300 to
the claimant.
~

Signed on behalf of the Labour Court

29th March, 1996 Evelyn Owens
L.W./U.S. --------------
Chairman