FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HENRY DENNY & SONS (IRELAND) LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Recommendation of a Rights Commissioner IR68627/08/MR
BACKGROUND:
2. The Company was a pork manufacturing business in Tralee up until 2008 when it ceased business. The worker was employed on a series of four contracts of employment from 3rd April, 2003, up to 15th May, 2006, when his employment was terminated. The Union's case is that after May, 2006, the worker was not brought back to work even though a number of employees with less service than him were re-employed. It believes that the worker should have received redundancy payments when he was let go in May, 2006. The Company's case is that it employed temporary worker as and when the business dictated e.g. promotional up-lifts; temporary workers were not recruited on a seniority basis at any time.
The worker referred his case to a Rights Commissioner whose recommendation was as follows:
"Accordingly, I now formally recommend that Henry Denny & Sons Ltd agree to pay the worker a once-odd lump-sum of €1000 as above. For their part the worker and SIPTU should accept this payment in full and final settlement of all matters in dispute between the parties."
(The worker was named in the recommendation.)
The worker appealed the recommendation to the Labour Court on the 5th November, 2009, in accordance with Section 13(9) of the Industrial Relation Act, 1969. A Labour Court hearing took place on the 5th October, 2011. in Tralee.
UNION'S ARGUMENTS:
3. 1. There was an agreed practice in the Company to recall employees based on seniority but that did not happen in the case of the worker concerned. This resulted in the worker losing out financially, both from a redundancy point of view and from work that he could have had from May, 2006, to the end of December, 2008, when the Company closed down.
COMPANY'S ARGUMENTS:
4. 1. The worker's temporary contract was terminated in May, 2006, when there was no longer a requirement for him to assist in the production uplift. The Company re-employed temporary workers again in July, 2006, but there was no need to take the worker back at this time.
2. The Company always operated on the basis of using a panel of temporary workers who were available to work during promotional up-lifts. This was an established and recognised practice in the business. Temporary staff were recruited on the basis of suitability and availability, not seniority as claimed by the Union.
DECISION:
- The matter before the Court concerns an appeal of a Rights Commissioner’s Recommendation which found against the worker’s claim that he had a right to be recalled on a seniority basis for any further work the Company may have had in 2006. The Rights Commissioner found that the Claimant had not established that the arrangements for recall of temporary workers at the plant were based on seniority and accordingly held that he had no right to be recalled by the Company in June and July 2006. However, when he took all aspects of the case into consideration, the Rights Commissioner concluded that it would be appropriate for the Company to pay the Claimant a once-off ex-gratia lump sum of €1,000 as a gesture of goodwill and in full and final settlement of all matters in dispute between the parties and recommended accordingly.
Having carefully considered the submissions of both parties the Court notes that the volume of work in the Company during the period May to December 2006 diminished considerably and, accordingly, the Company had very little reason to recall any temporary workers. By 2007 the Company was in closedown mode and commenced a redundancy programme. In all the circumstances, the Court concurs with the Rights Commissioner in his conclusions and, accordingly, rejects the appeal.
The Court upholds the Recommendation of the Rights Commissioner that an ex-gratia lump sum of €1,000 should be paid to the Claimant in full and final settlement of all matters in dispute between the parties.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th October, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.