FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SUTCLIFFE CATERING SERVICES LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal by the Union against Rights Commissioner's Recommendation BC164/96.
BACKGROUND:
2. The worker commenced employment as a chef with what was then the National Catering Company in April of 1990 and since then has worked in a number of catering units for the Company in Dublin. The Company was purchased by Sutcliffe Catering in May, 1993 with an obligation under the Transfer of Undertakings Regulations 1980 to operate in accordance with the Company/Union Agreement that was in place between the Union and the former employer, National Catering.
The worker was employed at the Company's unit in RTE from January, 1995 when he went there as a relief member of staff. He had received a number of verbal warnings with regard to his disruptive behaviour and his attitude at work.
The Company was concerned that his presence in the RTE unit would militate against its retainion of the contract. It was decided to transfer him back to the relief panel with effect from 26th February, 1996. The Union objected to the proposed transfer and stated that the Company had acted in an unjust and unreasonable manner by imposing the transfer on the worker.
Both parties agreed to refer the dispute to a Rights Commissioner. The Rights Commissioner investigated the dispute on the 25th April, 1996 and recommended as follows:-
"In light of the above I recommend that the worker consent to the transfer to another unit as this obligation is explicit in the Union/Management Agreement. This transfer to take place on 29th April, 1996 and the worker to remain on paid suspension until that date".
(The worker was named in the Rights Commissioner's Recommendation).
The Union appealed the recommendation to the Labour Court on the 14th of May, 1996. The Court heard the appeal on the 26th of July, 1996 under Section 13(9) of the Industrial Relations Act, 1969 (earliest date suitable to both parties).
UNION'S ARGUMENTS:
3. 1. The Company is in breach of Clause 17 of the Company/Union Agreement as no consultation took place with the Union or the worker concerning his transfer.
2. The Company has failed to justify the reason for transferring the worker. It is using the transfer clause for disciplinary purposes,.
3. The Company has acted unjustly and unreasonably in transferring the worker and has failed to comply with the Company/Union Agreement concerning transfers.
4. The worker should be allowed to return to his former position at the RTE unit in order to restore his personal and professional integrity.
COMPANY'S ARGUMENTS:
4. 1. It is a condition of employment with the Company that all staff are liable for transfer between other units within the Company following consultation with those concerned.
2. The worker was warned on a number of occasions regarding his disciplinary record. As there was no improvement in his attitude to his work,he was transferred.
3. The worker's conduct and attitude was causing a problem at the R.T.E. unit. It was decided that his presence in the unit would not be conducive to retaining the contract at the unit.
4. There will be no financial loss to the worker as a result of the proposed transfer.
DECISION:
Having considered all of the circumstances of this case the Court finds that if the Company considered it had problems of discipline these should have been addressed in the normal way through the agreed disciplinary machinery.
The Company by agreement have the right to transfer employees from unit to unit and the transfer required should have been effected in accordance with the provisions of the Company/Union Agreement.
The Court considers in this case that the letter of 1st March, 1996 and any record of any disciplinary action taken should be withdrawn.
With regard to the transfer the Court decides the employee should continue to work in the unit he is currently assigned to.
The Rights Commissioner's Recommendation should be amended accordingly.
Signed on behalf of the Labour Court
August, 1996______________________
L.W./U.S.Tom McGrath
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.