FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DURKAN HOMES - AND - A WORKER (REPRESENTED BY BUILDING AND ALLIED TRADES UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation R-031908-IR-05/GF
BACKGROUND:
2. The Worker commenced employment with the Company on the 23rd of April, 2004, and was let go on the 4th of January, 2005. On the 25th of August, 2004, he was injured whilst working on site and was out for ten weeks on sick leave. The Union's case is that when he returned in October, 2004, he noticed that the formerly good relationship he enjoyed with the Company had changed to a hostile atmosphere. His wages dropped and he believed that the Company wanted to get rid of him. On the 4th of January, 2005, he was told that his employment was terminated. He contacted his Union which asked the Company to reinstate him. The Company's case is that the worker was one of a number of employees who were laid off because of a lack of work. He had been given notice of termination of his employment in December, 2004.
The case was referred to a Rights Commissioner and his recommendation was as follows:
"I have listened to this case carefully and I have come to the conclusion that the Company has a good relationship with the Union representing the bricklayers and the issue of redundancies at the site had been discussed about the forthcoming dismissals, although not in specific detail. On examination, I decided the dismissal took place due to a genuine redundancy and the selection was not unfair. I find for the Company".
The worker appealed the recommendation to the Labour Court on the 16th of May, 2005, in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 4th of August, 2005.
UNION'S ARGUMENTS:
3. 1. The worker was seriously injured in the accident on site. When he returned he felt that the Company wanted to get rid of him and made the situation intolerable. When he informed site management of the problem he was told that he could leave if he wanted to.
2. The worker had no problem with the Company prior to his accident. He was given no verbal or written notice prior to his employment being terminated.
3. The Company claims to operate a system of "last in, first out" (LIFO) but there was a number of employees with less service than the worker who was kept on.
COMPANY'S ARGUMENTS:
4. 1. The Company had to lay off workers in December, 2004, in two sites - including Tallaght where the worker was employed - as a result of a lack of work.
2. The worker was informed of his termination of employment on the 2nd of December, 2004. His Union and his shop steward were informed of this, as were six other brick layers, and accepted the situation.
3. The selection for the lay offs was LIFO which is the Company's established practice.
4. The worker was paid for the ten weeks that he was out on sick leave.
DECISION:
The Court is satisfied that the claimant was dismissed by reason of redundancy and was not unfairly selected having regard to the custom and practice within the employment.
In these circumstances, the Court concurs with the conclusion and recommendation of the Rights Commissioner. The appeal is disallowed and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
12th August, 2005______________________
CON/DHChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.