FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BORAGE SERVICES LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - A WORKER DIVISION : Chairman: Mr Duffy Employer Member: Mr McHenry Worker Member: Mr O'Neill |
1. Appeal Against Rights Commissioner's Recommendation IR173/00/MR
BACKGROUND:
2. Marathon International Petroleum Limited operate two gas platforms off the Kinsale Coast. The catering service for this operation is managed by Campbell Catering Limited. Borage Services employ the staff involved in this contract and supply them to Campbell Catering. The worker concerned commenced employment with Borage Services as a steward on a casual basis in 1992. He was issued with a contract of employment in 1994 which stated that the employment would be on a rotational basis.
The dispute concerns the worker's claim that during the period 1993 to 1997, he was treated unfairly by the Company in regards to the allocation of work. The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and Recommendation are as follows:
"Based on the evidence before me, I am satisfied that the Company's letter to the worker in July 1997 confirmed the termination of his employment at that time. However, I see no evidence to support the argument that the worker was in the Company's employment after July 1997.
Further, it is clear that a long period of time elapsed before the worker contacted the Rights Commissioner Service on the matter.
In the circumstances, I recommend the worker should accept that it is not reasonable for him to pursue this claim after such a lapse of time."
The worker was named in the Recommendation. The Rights Commissioner's Recommendation was appealed by the worker to the Labour Court on the 28th of June, 2000 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Cork on the 18th of October, 2000. The Court also investigated the matter at a second Court hearing held in Cork on the 14th of February, 2001. The worker was not present at the second hearing.
WORKER'S ARGUMENTS:
3. 1. During the period 1993 to 1997, the worker was on-call all of the time. This arrangement prevented him from taking up other offers of employment.
2. The worker was treated unfairly by management regarding the allocation of work. He was regularly placed on stand-by while a colleague of equal standing had been retained in employment which was almost full-time.
3. The worker is concerned that he was singled out by management for treatment which he considered to be unfair and degrading. He was reluctant to put forward his concerns to management for fear of damaging his prospects of future employment.
COMPANY'S ARGUMENTS:
4. 1. It is clear from the worker's contract of employment (details supplied) that the nature of his employment was of a casual nature and at no time was he guaranteed work. Any work which he was given was in accordance with agreed practice with his Union and in return for being part of that practice there was an obligation on him to be available to work when required.
2. In 1994 following detailed negotiation Campbell Catering and SIPTU entered into a comprehensive working agreement and this formed part of the worker's terms and conditions of employment. In the case of the worker concerned he was employed with effect from the 1st of June, 1994 as a casual steward. His function was to replace stewards who were absent on sick leave or on holiday leave.
3. In July, 1997 there was a requirement for the worker to provide cover on the gas platform. When contacted he indicated that he had taken up work elsewhere on an exploration rig off shore and was not available to work. Subsequently he advised the Company that he wished to resume working once he finished his current job. Although advised by management to let them know of his availability no further contact was made with the Company.
4. The Company employees are organised by SIPTU and if the Company had acted unreasonably towards the worker, the Union would have made representations on his behalf. No such representations were ever made.
DECISION:
On the basis of the information made available to it at the original and the resumed hearing, the Court is satisfied that the Recommendation of the Rights Commissioner is reasonable and should be upheld.
Accordingly, the appeal is dismissed and the Recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
28th February 2001
FB/SH______________________
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.