FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CARTON BROTHERS LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's recommendation No. IR940/98/JH.
BACKGROUND:
2. The appeal by the Union is on behalf of a production worker who is employed at the Company's Offal Processing Plant in Shercock, Co. Cavan. The Union claims that the worker was employed by the Company from the 1st of November, 1993 to date and that he was on leave of absence from the 15th of April, 1994 to the 17th of July, 1994. The Company argues that the worker terminated his employment on the 15th of April, 1994, and commenced a second period of employment with the Company on the 18th of July, 1994. The Company contends, therefore, that the worker's seniority within the Company commenced on the 18th of July, 1994.
The Union referred the issue to a Rights Commissioner for investigation. Her recommendation issued on the 4th of March, 1999, as follows:-
"On the basis of the evidence presented at the hearing I am satisfied that (the worker) entered into two contracts of casual employment with this Company. The second of these is relevant to this case and it clearly sets out a commencement date of 18th July, 1994 and is therefore (the worker's) date of service with the Company. Any person with continuous service with the Company commencing prior to the 18th of July, 1994 has longer service than (the worker). I therefore do not recommend concession of his claim for restoration of service prior to 18th July, 1994."
(The worker was named in the Rights Commissioner's recommendation.)
The Union appealed the recommendation to the Labour Court on the 26th of March, 1999, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 11th of June, 1999, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The worker requested, and was granted, leave of absence to visit the U.S.A.. He was told that his job was there for him on his return.
2. The worker did not tender a resignation to the Company in April, 1994. On his return to work in July he queried the issuing of the P45 which he had received in April, but he was informed by Management that there was nothing that could be done about it.
3. The worker accepts that he signed a second contract of employment in July, 1994, but understood that this was merely to allow him to resume work. The Company did not inform the worker that his absence would result in a break in service.
COMPANY'S ARGUMENTS:
4 1. The worker was not on leave of absence or any other form of leave. He terminated his employment with the Company on the 15th of April, 1994, and received a P45, holiday pay, etc.
2. The worker was told that there would be a job for him upon his return. He was not told that his previous job would still be vacant. A resignation constitutes a break in service which means that another worker who commenced employment on the 18th of April, 1994, has longer service than the claimant.
3. The worker was issued with, and signed, two contracts of employment. This confirms that he accepted that he was starting afresh with the Company on the 18th of July, 1994.
DECISION:
Having considered the submissions of the parties the Court finds no basis on which it should interfere with the Recommendation of the Rights Commissioner.
The appeal is disallowed and the Recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
1st July, 1999______________________
DG/BCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.