FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : V'SOSKE JOYCE LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR10737/02/JH.
BACKGROUND:
2. The Union contends that the worker was unfairly selected for lay-off, and then made redundant in July 2002. The issue was referred to a Rights Commissioner for investigation and recommendation. On the 9th January 2003 the Rights Commissioner issued her Recommendation as follows:-
"On the basis of the submissions made and for the reasons set out in the foregoing I recommend that the worker receives €600 net compensation in respect of the termination of her employment by V'SOSKE in July 2002".
(The worker was named in the Rights Commissioner's Recommendation)
The Company appealed the recommendation to the Labour Court on the 23rd January, 2003 in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 16th April, 2003, the earliest date suitable to the parties.
COMPANY'S ARGUMENTS:
3. 1. Due to trading difficulties the Company had no option but to lay off the worker and two other employees who commenced employment at the same time, 4th March 2002 and finished on 15th July 2002.
2. The criteria that was used by the Company, was the "last in first out" principle.
3. The Union contends that the Company engaged four additional employees to carry out work which was proper to the worker. Three of those employed were family members (students) of the Managing Director and the Production Director. They had worked for the company during holiday periods for a number of years. The fourth person was also a student.
4. The four employees hired by the Company during the summer period carried out duties for which the worker was not trained, suitable or qualified for. The Company's contention is that these students were only employed for the summer months and other holiday periods and that they brought skills to the workplace which the worker did not have.
UNION'S ARGUMENTS:
4. 1. The contract of employment which the worker entered into on the 4th March 2002 was breached by the company when they hired new employees at the end of June to carry out work normally performed by her. On being made redundant she was denied access to hours of work which were available at the plant and which were rightly hers. Work continued to exist, but was carried out by the new employees.
2. No discussions took place between the Company or the Union on the temporary employment of the students during the summer months or the duties that they would be carrying out.
3. The Union claim that there was no redundancy situation at this time and in fact the worker's duties continued to be performed by the new employees. The Company also had the financial resources to pay the students to perform these duties.
DECISION:
In all the circumstances the Court is of the view that the Company was remiss in not discussing the engagement of the four individuals for the summer months. Further, the Court believes that certain work which was undertaken by these individuals should have been offered to the claimant.
In the circumstances the conclusions and recommendation of the Rights Commissioner are reasonable. Accordingly, the recommendation is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
7th May, 2003______________________
JB/MBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.