FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ARTESYN TECHNOLOGIES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - TWO WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal of Rights Commissioner's Recommendation IR10779/02/MR
BACKGROUND:
2. The case concerns three workers (one subsequently left the company) who applied for and were successful in being appointed to Group Leader positions within the company. The Union states that the workers asked the production manager if the positions were permanent and they were informed that they were.
Management rejects the Union's claim that the positions were permanent and states that by July, 2001 the employees concerned had reverted back to their former grade.
The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 15th April, 2003 the Rights Commissioner issued his recommendation as follows:-
Findings
"In the first place, it seems to me that if the company had intended to make these appointments on a temporary basis, there was an obvious onus on management to ensure that this was clear from the start of the appointment process, and specifically when the positions were being advertised.
However, there was no evidence before me at the hearing to suggest that this is what happened. Indeed, the fact that the first of the three employeesto take up her Group Leader position was treated for pay purposes as if her promotion was permanent would support the oppositeconclusion.In the circumstances, I find that the union's claim must succeed."
Recommendation
" Accordingly, I recommend that the company should accept that the claimants have remained entitled to the Group Leader rate since the date of their promotion, and that all payments to the two employees should now be adjusted accordingly, in line with the union's claim."
Management appealed the recommendation to the Labour Court on the 20th May, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Cork on the 5th November, 2003, the earliest date suitable to the parties.
COMPANY'S ARGUMENTS:
3. 1. The Company is satisfied that the appointments made to the Group Leader level were temporary. It is accepted however, that because of the absence of formal confirmation the workers concerned believed that the posts were permanent.
2 The advertisement which gave rise to the competition was silent on whether the Group Leader positions were permanent or temporary posts.3. The Company is satisfied that it has dealt at all times with these two workers in a fair manner. Furthermore, it submits that the grounds on which they base their claim when looked at in full context does not have validity.4. Group Leaders in the Company were made redundant in March 2002. The workers concerned would have been let go at this time but were retained for a further twenty-six months in their general operative grade.
UNION'S ARGUMENTS:4. 1. The Union is satisfied that the positions were advertised as permanent positions.The progression onto the appropriate rate pay scale, was in accordance with the Company/Union agreement in relation to permanent posts.
DECISION:
The Court has given careful consideration to the subsmission of both sides to this appeal of the Rights Commissioner's recommendation. The Court is satisfied that in the absence of a clear statement to the contrary the promotions applied for imply that they were permanent positions. The Court is supported in this view by the fact that in the case of one of the claimants her rate of pay did not increase for a period of three months, which was in line with the practice for promotion to permanent positions in the company.
The company accept that their policy in the event of a transfer back to a lower grade is to retain the higher rate on a redcircled personal to holder basis. However, the company indicate that as group leaders were made redundant in March, 2002, the workers here concerned would have been made redundant at that time due to their length of service, instead they were retained for a further 26 months in their general operative grade.
This policy coupled with the assertion that they were appointed to permanent positions leads the Court to the conclusion that the higher rate of pay should have been retained until their termination of employment in August, 2003.
Accordingly, the Court concurs with the finding of the Rights Commissioner's recommendation and rejects the company's appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th November, 2003______________________
LWDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.