FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FLAIR INTERNATIONAL LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal of Rights Commissioners Recommendation IR17470
BACKGROUND:
2. Flair International Ltd is located in Baileborough, Co. Cavan and manufactures a varied selection of shower enclosures and bath screens. The Company has been in operation since 1966 and currently employs 129 people. The Claimant commenced employment with the Company in March 1988 and was successful in obtaining a position in the warehouse in January 1999, which attracted a higher rate of pay.
- The Union contends that his job description allowed for movement between the different areas of the plant and subsequently he was transferred to the Assembly area in 2001 on a temporary basis. He retained his warehouse rate of pay. While on temporary transfer to the Assembly area a vacancy arose due to the creation of a new shift position in Stores, which attracted a premium of 25%. The position was offered to and filled by an employee with three years less Company seniority but more Stores seniority. The dispute before the Court arises from this situation and the Union is claiming that its member remained part of the warehouse personnel during his redeployment and should have been offered the job when it arose as he held a more senior position within the Company.
The Company rejects the claim and contends that the Claimant has no entitlement to the job offered as he did not work in the relevant department at the time. The departmental procedure and working arrangements were adhered to in offering the position to the appropriate candidate.
- The matter was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 19th May, 2004, as follows:
- “I recommend in favour of the Company as I believe that the correct criteria in filling the position in dispute was to limit, in the first instance, the offer of the job to other employees who were working in the warehouse at the time and to use Departmental rather than Company service to determine the order in which to offer those employees the role.”
- The worker was named in the Rights Commissioner’s Recommendation.
On the 1st June, 2004, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 23rd November, 2005.
- The worker was named in the Rights Commissioner’s Recommendation.
3. 1. The job description is the subject of agreement between the Union and the Company and was arrived at through long negotiations. Clause 11 in the Stores agreed Job Description differs from other areas of the Plant where movement is based on seniority within the department. If the Company's action is accepted unchecked, then it brings into question the integrity of all other agreements between the Union and the Company. The exclusion of the Claimant from the shift position represented a breach of the agreed Job Description.
2. The Claimant ceased employment with the Company in November 2004. The Union argues that his perception that he was unfairly treated contributed in great part to his departure.
3. The shift position in the warehouse should be declared void and in breach of an agreement. The Union is seeking the award of 25% of his earnings from February 2001 to the time of his departure, November 2004.
COMPANY'S ARGUMENTS:
4. 1. When the position became available, the Company followed normal practice, namely, that the members of staff working in the warehouse at the time were offered the shift-work in order of seniority within the department.
2. The Unions claim implies that any employee who is redeployed to another department within the Company, while holding their grade and basic pay, has seniority rights over those of another department where they do not work. The Company argues that this is inequitable to those who remain within a department.
3. A compensation payment was given to and accepted by the Claimant, amongst other employees, resulting from the implementation of the shift. This in itself is an acceptance of the shiftwork introduction. The Company acted reasonably and fairly in this situation.
DECISION:
This is an appeal by the worker of a Rights Commissioner's recommendation which found in favour of the Company's position that the correct criteria was used in the filling of a newly created shift position when it was offered in order of Department seniority.
The offer of the job was confined in the first instance to those who were working in the warehouse at the time and the criteria used was to select on the basis of their departmental service rather than their overall Company service.
The worker appealed the Rights Commissioner's recommendation on the basis that his job description provided for movement to other areas of the plant as instructed by the Foreman, which meant that while he may have occasionally worked in other areas of the plant, he continued to retain his Warehouse rate of pay.
He maintains that at the time of the vacancy he was temporarily assigned to the Assembly plant and that he should have been offered first refusal as he had longer overall Company service as a member of the Warehouse personnel, albeit redeployed when the shift job was being filled. Therefore, he should have been offered the job, which attracted a 25% shift premium.
The Company on the other hand, stated that this was not a position vacated by a worker, it was the creation of a new position, therefore, it maintained that it had the right to offer first refusal in sequence to the Warehouse storemen in order of departmental sequence. The appellant was not offered the position as he was not working in the department at the time and he only operated on a relief basis in the Warehouse at the time. However, the Company did state to the Court that had there been a vacancy, then the appellant would have been offered first choice.
Having considered the views of the parties expressed in their oral and written submissions, the Court concurs with the findings and the recommendation of the Rights Commissioner and disallows the worker's appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th December 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.