FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FRANK MCGRATH CONSTRUCTION LIMITED (REPRESENTED BY CONSTRUCTION INDUSTRY FEDERATION) - AND - A WORKER (REPRESENTED BY B.A. MARTIN &COMPANY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation Ir11156/02/MR.
BACKGROUND:
2. The appeal concerns a worker who commenced employment with the Company as a bricklayer on the 5th July, 2002. He was dismissed on the 8th July, 2002. The worker claimed that he was unfairly dismissed. The dispute was referred to a Rights Commissioner for investigation. On the 20th March, 2003 the Rights Commissioner issued his recommendation as follows:
"Accordingly, I recommend that, as an exceptional measure, Frank McGrath Construction Ltd. should agree to pay the worker an ex-gratia lump sum of €500 and that the worker should accept this payment in full and final settlement of all matters in dispute between the parties"
(The worker was named in the Rights Commissioner's recommendation)
On the 22nd April, 2003 the worker appealed the recommendation to the Labour Court. The Court heard the appeal in Limerick on the 17th September, 2003.
WORKER'S ARGUMENTS:
3. 1. When the claimant called to the Company's site seeking employment on Friday 5th July he was allowed to start work immediately and no mention was made at that time that it was mandatory to be a member of the appropriate trade union. That afternoon however, following the intervention of a union official, the worker was informed by Management that, as he was not a member of the appropriate union, industrial action would ensue at the site unless he was dismissed.
2. The Company's claim of a requirement that all workers must complete a contract of employment and requesting that workers must be members on an appropriate union is a fabrication. The claimant has worked in the building trade for many years and has never completed a contract of employment application with any employer.
3. The Company supported the worker until union activity commenced and continued the worker in the employment until Monday 8th July, when he was dismissed.
4. The worker was unfairly dismissed and seeks appropriate redress.
COMPANY'S ARGUMENTS:
4. 1. The foreman on site asked the claimant to produce his union card at the commencement of his employment on Frday 5th July. The claimant stated he did not possess it at that time but would produce it on the following Monday morning. The construction industry in the area is highly unionised and is usual practice for all employers to enquire about union membership at interview stage.
2. Following the intervention of the union official on the Friday afternoon the Company was informed that there would be 'difficulties' if the claimant was continued in the employment.
3. On arrival at the site on Monday 8th July, the claimant was requested to produce his union card. He informed Management that he did not possess a union card. The Company has a standard contract of employment for its craft workers which stipulates that membership of the appropriate trade union is a requirement of employment.
4. The dispute centres on the relevant trade union's refusal to give one of their former members a union card and, as a consequence, union members on site refused to work with the claimant.
5. The Company paid the claimant an agreed amount (€600) for the work which he completed. In the circumstances the worker was not unfairly dismissed.
DECISION:
Having considered the submissions of the parties the Court is satisfied that 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
25th September, 2003______________________
todDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.