FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : PORTROE STEVEDORES LIMITED (REPRESENTED BY DAS GROUP) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation IR20347/04/DI.
BACKGROUND:
2. The worker concerned worked at Dublin Port with OML until it closed, at which time he transferred to Portroe Stevedores Limited in 2003. An agreement was reached in May 2003 concerning the conditions relating to the availability of work for casual dock workers. Difficulties in relation to the implementation of that agreement led to a Labour Court hearing and recommendation in May 2004 which stated that individuals associated with that claim should receive comprehensive training in all necessary skills and then be assessed by an independent assessor. Should individuals fail to obtain the required standard a severance package should be negotiated.
The worker concerned was assessed in October 2003 and April 2004. The worker was advised on an ongoing basis of his faults and failings and was advised as to how he could improve. The Company received an assessment that the worker was 'a danger to himself and others' and formed the view that the worker had been given more than ample opportunity to receive comprehensive training and to re-adjust his attitude towards health and safety.
The Company wrote to the Union and then entered into discussions in relation to the workers position within the Company. No agreement could be reached.
The issue was referred to the Rights Commissioner for investigation and recommendation. His recommendation issued on the 19th January 2005, as follows:-
"I believe that the worker should have the benefit of a comprehensive training programme in the skills where he evidently has a deficit. I recommend that he be reinstated and, in accordance with the Labour Court's recommendation , LCR17846, that the worker be given a comprehensive training programme. At the end of that programme he should be independently assessed and, should he fail to achieve the required standard, point 4 of the Labour Court's recommendation should be implemented .........."should any of the individuals fail to obtain skills of certification to the required standard, the parties should negotiate a severance package for those individuals".
(The worker was named in the Rights Commissioner's Recommendation).
The Company appealed the recommendation to the Labour Court on the 17th February, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 3rd May, 2005.
COMPANY'S ARGUMENTS:
3. 1.Based on the assessment of a professional trainer the Company formed the view that the worker either did not possess the aptitude or was otherwise unwilling to undertake the training successfully.
2.The Company would have been guilty of gross negligence and breach of its duty of care to the worker and all its workers by allowing the worker to continue to drive or train on driving fork lift trucks.
UNION'S ARGUMENTS:
4. 1.The Company have failed to provide comprehensive training as in Clause 2 of LCR17846.
DECISION:
The Court is of the view that the Rights Commissioner recommendation should be implemented on the basis that the claimant be reinstated for the purpose of being provided with intensive training as envisaged by the Court in Recommendation LCR17846.
Should he fail to be certified as competent the parties should proceed in accordance with paragraph 4 of Recommendation LCR17846.
Signed on behalf of the Labour Court
Kevin Duffy
5th May, 2005______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.