FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAHLSTROM MANUFACTURING COMPANY - AND - A WORKER DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Mr Rorke |
1. Appeal of Rights Commissioner's Recommendation No. RC117/97 concerning temporary lay-off.
BACKGROUND:
2. Dahlstrom Manufacturing Company is an engineering and metal fabrication plant located in Coolock. The worker concerned commenced employment with the Company as a welder fabricator in February, 1991.
The dispute before the Court concerns the temporary lay-off of the worker in February, 1997. The worker claims that management ignored seniority when he was selected for lay-off with a number of other employees who had relatively short service. Management's position is that some workers with less service than the worker were retained because of their special skills.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and Recommendation are as follows:-
"I am satisfied from the evidence before me that the Company has by and large adopted a reasonable approach to lay-offs when they arise.
However, to try to allay the concern expressed about possible future developments, while fully accepting reality that no wording can be guaranteed to cover future situations perfectly, I am proposing that Dahlstrom and its employees consider the following formula for dealing with lay-offs in the future.
It is recognised that circumstances outside the Company's control, e.g. fuel or material shortages, market conditions, extreme weather conditions, etc., may necessitate temporary lay-offs or reduced working hours. In all such cases the Company will give its employees as much notice as is feasible in the circumstances.
It is further recognised that business or economic circumstances may arise which may leave the Company with no alternative but to declare a redundancy situation.
All things being equal, the Company considers the seniority of the affected employees to be the most important consideration when dealing with such issues. However, the Company reserves the right to retain certain employees, who, because of their training and/or technical competence, are considered by management to be required to maintain an efficient and continuing operation".
I therefore recommend that Dahlstrom and its employees consider the above text for possible adoption and use if the relevant circumstances arise in the future".
The Rights Commissioner's Recommendation was appealed by the worker to the Labour Court on the 11th of June, 1997 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal on the 3rd of October, 1997.
WORKER'S ARGUMENTS:
3. 1. The Company's contention that some of the workers (leading hands) retained were key personnel is unacceptable to the workforce in general. One of the retained workers had previous service with the Company and only agreed to return to the Company on condition that he would be appointed as a leading hand.
2. A leading hand is essentially a working chargehand whose main function is the allocation of work. In view of the fact that up to 15 employees were laid-off and a number of supervisors retained there was no justification in management's actions. It was a situation where management suited themselves and disregarded seniority.
3. The inclusion by the Rights Commissioner of an opt out clause for the Company based on the grounds of "suitability and technical competence" is unacceptable because the Company would not apply the clause in a fair and reasonable way. It has already advanced spurious arguments to justify the retention of some workers and to circumvent the last in first out principle.
COMPANY'S ARGUMENTS:
4. 1. All things being equal, the Company considers that the seniority of its employees is the most important consideration when dealing with redundancies and lay-offs. However, the Company reserves the right to retain certain employees, who, because of their training and technical competence, are considered by management to be required to maintain the efficient and continuing running of the operation.
DECISION:
The Company clarified its position in relation to Leading Hands when lay offs arise as follows:
Leading Hands are part of the panel for consideration for lay offs should this arise.
However, as with others on the panel special skills will be a consideration in determining employees for lay off.
Based on this, the Court rejects the appeal and upholds the Rights Commissioner's Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
21st October, 1997______________________
F.B./S.G.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.