FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : UNITED FISH INDUSTRIES LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Alleged discrimination against the Worker in the allocation of casual employment contrary to the terms of the Company/Union Agreement.
BACKGROUND:
2. The case concerns a dispute between the Company and Union in relation to an alleged breach of the Company/Union agreement in relation to the allocation of hours. The worker is a casual employee who has worked for the Company on that basis for many years. In 2009 the previous practice of allocating hours on a seniority basis was discontinued and voluntary redundancies were put in place. The worker did not apply for the redundancy, wishing instead to remain available to attend work on a casual basis if required, however, the worker has not been called to work since December, 2011.
Management's position is that the worker is well aware that as a casual worker there is no obligation on the employer to provide hours of work. Management contend that it is at its discretion who is called to work and when.
The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations commission. As agreement was not reached, the dispute was referred to the Labour Court on the 30th July, 2012, in accordance with Section 26(1) of the Industrial Relations Act, 1990.
A Labour Court hearing took place on the 15th November, 2012.
UNION'S ARGUMENTS:
3. 1. The worker has been denied access to employment for almost an entire year. The worker did not avail of voluntary redundancy instead indicating his intention to remain available for any work that became available.
2. The 2009 Agreement provided that work would be evenly distributed where possible. The Agreement did not seek to negate the rights of part time/casuals employees.
MANAGEMENT'S ARGUMENTS:
4. 1. The worker did not attend to meet the Management on disputed issues as agreed. In such circumstances the worker effectively deemed himself no longer available for work.
2. The 2009 Agreement provides that Management has the sole right to provide work to casual employees as it sees appropriate given the nature of its business.
RECOMMENDATION:
The Court has considered the language used in the agreement in question. The clause in issue is capable of more than one viable interpretation. However, up to December 2011 the agreement was operated fairly and available work was allocated in a manner which did not give rise to complaints. Under those arrangements the Claimant was allocated work.
The Court recommends that the allocation of casual work should be on the same basis as applied up to December 2011, that is to say on a fair and equitable basis. The Claimant should be considered for casual employment on the same basis as all other casual employees.
The Court further recommends that the Claimant be paid compensation in the amount of €3,000.
Signed on behalf of the Labour Court
Kevin Duffy
5th December, 2012.______________________
AH.Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.