FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : C & C (IRELAND) LIMITED - AND - A WORKER (REPRESENTED BY MARINE, PORT AND GENERAL WORKERS' UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr McHenry Worker Member: Ms Ni Mhurchu |
1. Pay and conditions.
BACKGROUND:
2. The Company is involved in the manufacturing, marketing and selling of a range of soft drinks to the grocery trade. The worker concerned has been employed by the Company since 1988. The Union claims that the worker should be regarded as a permanent merchandiser whereas the Company maintains that he is temporary. His present rate of pay is £170 per week.
In June, 1998, the Company wrote to the worker, and a number of other employees, offering him a one year contract to the 30th of June, 1999 at a rate of £185 per week. Subsequently, the Company proposed to offer the worker redundancy with an ex-gratia payment and one final contract to end in the year 2000. The Union is seeking to regularise the worker's position within the permanent workforce in the sales area.
The dispute was referred to the Labour Relations Commission and a conciliation conference took place on the 24th of November, 1998. As the parties did not reach agreement, the dispute was referred to the Labour Court on the 22nd of December, 1998, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 23rd of February, 1999.
UNION'S ARGUMENTS:
3. 1. The worker's employment has been continuous since 1988 and he has clearly established statutory rights of continuous employment. If he signed the proposed contract he would not be covered by the Unfair Dismissals Act, 1977.
2. The worker is a permanent merchandiser. There is no basis for the Company to offer his a temporary contract as he wishes to remain in permanent employment. The worker is presently in the Limerick area but would be willing to move if necessary.
COMPANY'S ARGUMENTS:
4. 1. The grocery sector has undergone major changes in the last number of years, particularly with growth of supermarkets. The Company was forced to revise its cost structure and recruit contract merchandisers on short-term contracts.
2. A small number of employees, including the worker concerned, were employed on temporary contracts. Their positions were never regularised. The contracts offered in 1998 were to bring their conditions of employment into line with other contract merchandisers.
3. The worker was employed in a temporary position and could not expect this to be changed to a permanent one. The Company offer of an extended contract and redundancy is fair.
RECOMMENDATION:
The Court has given consideration to the oral and written submissions made by the parties. As a result of discussions at the hearing, the Court takes the view that insufficient consideration has been given to the claimant's position.
The Company is stating that it is necessary to radically change the structure of merchandising as operated by the Company up to recently. With the agreement of the Union in 1995, major changes have commenced. At this point, it is proposed to make the claimant redundant. The Union is seeking an integration of his position into the Sales Forces area, a position for which the Company say he is unsuitable.
The Court considers that the possibility of offering the claimant alternative employment has not been fully explored. Every effort should now be made by the parties to find suitable alternative employment and, if necessary, to provide reskilling/retraining to enable the claimant remain in employment.
From the evidence produced, the Court is satisfied that the claimant has been "continuously" employed since 1988, and therefore, has built up legal entitlements under the Unfair Dismissals Acts 1977-1993, and under the Redundancy Payments Acts, 1969-1991.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th March, 1999______________________
C.O'N./D.T.Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Ciaran O'Neill, Court Secretary.