Labour Court Database __________________________________________________________________________________ File Number: CD95593 Case Number: AD968 Section / Act: S13(9) Parties: IARNROD EIREANN - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal of Rights Commissioner's Recommendation No. BC134/95.
Recommendation:
Having considered the submissions from the parties, the Court has
concluded that the Rights Commissioner's Recommendation is not
unreasonable in the circumstances and should be upheld.
The Court, accordingly, rejects the appeal and so decides.
Division: Ms Owens Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD95593 APPEAL DECISION NO. AD896
INDUSTRIAL RELATIONS ACTS, 1946 to 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IARNROD EIREANN
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal of Rights Commissioner's Recommendation No. BC134/95.
BACKGROUND:
2. In 1991, the Company's road freight operation underwent a major
rationalisation programme which resulted in a number of
redundancies including that of the then working foreman. Nine
workers remained, five full-time drivers and three helpers, along
with the claimant who was working as a driver 2/3 days per week and
was given the duties of the working foreman.
3. Following a period of illness the claimant was certified as
permanently unfit to return to driving duties. He was subsequently
re-employed as a helper. During his absence, the duties of working
foreman had been carried out by the most senior driver willing to
carry out the duties. Shortly after his return to work, the
claimant became aware that he was no longer in receipt of the
foreman's differential, which was still being drawn by his
replacement. The Union raised the matter with the Company whose
position was that only a driver could carry out he duties of
foreman. Agreement on the matter was not reached between the
parties and the dispute was investigated by a Rights Commissioner
who found that it would not be practicable for the employer to
allow the claimant to undertake foreman duties over and above his
current duties as a helper. He also found that the manner in which
the issue had been dealt with had not been as streamlined as might
have been the case. He recommended that the worker be paid an
ex-gratia sum of £100.
4. The Union appealed the Rights Commissioner's Recommendation on
the 13th of October, 1995. The Court heard the appeal, in
Waterford, on the 24th of January, 1996.
UNION'S ARGUMENTS:
5. 1. There is no logical reason why the worker cannot
satisfactorily perform the foreman's duties every bit as
effectively when graded as a helper. The duties are
minimal, although important.
2. The other drivers, with the exception of one, have
supported the worker's right to be foreman.
3. Although the Company has stressed the point that he would
not be able to drive a company vehicle, the fact remains
that it is rarely that driving needs to be done by the
foreman.
4. None of the medical specialists involved have said that
the worker is unfit for the duties of foreman.
5. The matter was badly handled by the Company who did not
inform the worker that he was to be removed from the
duties of foreman.
COMPANY'S ARGUMENTS:
6. 1. The claimant's duties require him to depart from the
depot at approximately 7.30 a.m. each morning to travel
to destinations to make deliveries. If he were to
undertake the foreman's duties before departing it would
mean that (a) the driver would have no assistance in the
loading of the delivery vehicle, and (b) if a problem did
arise for the foreman, the driver would have to wait
until his helper was available, resulting in extra
overtime being paid by the Company.
2. The driver that is presently carrying out the foreman
duties has time available before departing the depot each
morning and on his return in the afternoon.
3. The claimant is being paid an average of sixty hours
per week to perform his duties as a helper. The payment
of an extra one hour @ time x 1.5 per day, which he would
demand to undertake the foreman duties could not be
justified.
4. The position of working foreman has always been a
temporary position, and no person has ever been appointed
to it.
DECISION:
Having considered the submissions from the parties, the Court has
concluded that the Rights Commissioner's Recommendation is not
unreasonable in the circumstances and should be upheld.
The Court, accordingly, rejects the appeal and so decides.
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Signed on behalf of the Labour Court
Evelyn Owens
6th February, 1996 -------------
M.K./U.S. Chairman