FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LIEBHERR CONTAINER CRANES LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL, UNION.) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR7799/02/MR.
BACKGROUND:
2. The Company was established in Killarney, Co. Kerry, in 1958. It is involved in the construction and installation of container and harbour cranes. It currently employs approximately four hundred and sixty workers.
The worker concerned commenced employment on a temporary basis with the Company on the 30th of April, 1990, as an Electrician. In April, 1995 he was offered a permanent contract of employment which he accepted. The contract included a clause which required him to carry out onsite service and erection work away from base where necessary.
The Company maintains that on several occasions the worker refused to travel abroad to carry out onsite service and erection work due to personal reasons. In November, 1999, the Company, dissatisfied with this behaviour issued a first written warning followed by a second written warning to the worker concerned.
The Union states that the worker concerned signed the permanent contract under protest. It argues that there is no evidence that he refused to carry out work as requested.
The issue was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 20th of August, 2002, as follows:-
"Firstly, there was no evidence before me at the Hearing to support the Union's contention that the worker signed his permanent contract in 1995 under protest. I therefore, have to accept that this contract is fully valid and that its terms continue to apply.
Secondly, it clearly follows from this that the worker does not have the right to refuse to work at all sites away from the Company's premises. The Company should, of course, discuss any such trip with the worker as far as possible in advance and make appropriate allowance for any personal difficulties that may arise on any particular occasion.
Finally, I am satisfied that this difficulty might well have been resolved much earlier if the Company had drawn up a formal policy document on the issues arising from working off site, including the central question of how employees are selected for such trips. I therefore, find that the Company should draw up such a policy as a matter of urgency, and discuss it with the relevant staff and their representatives with a view to introducing it on an agreed basis at an early date.
In the circumstances , I formally recommend that the parties should accept the above findings".
(The worker was named in the Rights Commissioner's recommendation).
The Union appealed the Recommendation to the Labour Court on the 6th of September, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 29th of April, 2003, the earliest date suitable to the parties.
UNION'S ARGUMENTS:
3. 1. The worker concerned signed his permanent contract of employment under protest.
2. The worker concerned has for years worked on the basis that for him to work on sites away from base required his agreement.
3. The Company always has employees willing to travel abroad.
4. A proper rota system should be introduced to select employees to work abroad.
COMPANY'S ARGUMENTS:
4. 1. The Company allowed the worker concerned to work shorter than normal periods abroad and where possible placed him in convenient locations to allow him to travel home, always taking his personal circumstances into account.
2. Reliability of service and erection is essential and Management must be able to plan work and roster craft employees in a fair and equitable manner.
3.It is a condition of the worker's employment that he work away from the Company's premises to carry out onsite installations as required. By his refusal to co-operate with his employer's requirements he is in direct breach of the agreed terms of his contract of employment.
DECISION:
The Court has considered the submission of both parties to the worker's appeal of the Rights Commissioner's recommendation. The Court is satisfied that there is no evidence to suggest that the permanent contract of employment signed by the appellant on 4th April, 1995, is in any way invalidated by a letter dated 30th January, 1995, from the Company to the worker.
Accordingly, the Court concurs with the findings of the Rights Commissioner and upholds his recommendation in full. Therefore, the Union's appeal fails. The Court recommends that the parties should proceed with the implementation of the policy recommended, with a sense of urgency. Furthermore, the Court is of the view that the appellant must comply with the policy on an equal basis as all other staff covered by it.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th May, 2003______________________
GB/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Gerardine Buckley, Court Secretary.