FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KINGSPAN LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - FOUR WORKERS (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendations r-111618, 111629, 11622 & 111624-ir/SR
BACKGROUND:
2. This dispute concerns the manner in which Workers were selected for layoff. This matter was referred to a Rights Commissioner for investigation and recommendation. On the 25th January, 2012 the Rights Commissioner issued the following Recommendation:-
- “I recommend that each of the four Claimants be restored to their work/positions with the Employer within 2 weeks of the date of this recommendation and in addition I recommend that the Employer pay each of the four Claimants the difference between any social welfare payments received by them and their normal weekly pay for he duration of their lay-off period”.
On the 24th February, 2012 the Worker 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 2ndMay, 2012.
3. 1. The Company unilaterally moved Supervisors to a Management grade.
2. The Company then announced that Supervisors would not be considered for layoff.
3.The Workers, therefore, were unfairly selected for layoff even though they had longer service than Supervisors.
COMPANY'S ARGUMENTS:
4. 1. The collapse in the construction sector has had a devastating effect on the Company.
2. The Company had to introduce layoffs as part of it plan for ensuring the future of the business.
3. The Company's use of seniority grounds to select employees for layoff was fair and reasonable.
DECISION:
- Having considered the submissions of the parties it is clear to the Court that the dispute giving rise to this appeal cannot be dissociated from the underlying dispute concerning the appropriate classification of the newly created Shift Manager position. If, as contended by Management, the new positions are properly classified as a management posts they do not come within the ambit of the collective agreement on selection for redundancy or lay-off. Conversely, if the positions are, in reality, a reclassification of the old supervisor posts they could be covered by the agreement. Consequently, the current dispute cannot be adequately addressed without addressing that question.
It is regrettable that the dispute between the parties on this issue was not resolved within the established procedures at the time it arose. The passage of time since this issue first arose, and the absence of agreement on the factual position regarding the role, functions and conditions of employment attaching to the positions, makes it difficult for the Court to express a definitive view one way or the other on this question.
In the Court view the current dispute should be resolved by the Union now accepting that the four new positions created in 2011 are to be regarded as management roles and as such outside the scope of the Agreement on redundancy and lay-off. The Company should accept some responsibility for the failure to have this matter definitively resolved at the time the new positions were created and the consequent dispute concerning its entitlement to select the four workers associated with this dispute for lay-off.
On that basis the four workers should be paid compensation equal to their economic loss arising from the lay-offs (less social welfare payments and any earnings from the employment from the date on which they were laid off-up to the date of this Decision). However, the Court does not consider that their reinstatement at this time is a viable proposition. They should, however, be reinstated at the earliest possible opportunity.
The appeal is to that extend allowed and the decision of the Rights Commissioner varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
8th May, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Colm O'Flaherty, Court Secretary.