ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00005048
Parties:
| Complainant | Respondent |
Parties | A General Operator | An Agricultural Company |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00007168-001 | 23/09/2016 |
Date of Adjudication Hearing: 03/03/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
The complaint lodged a complaint with the WRC on 23 September, 2016 that he had experienced a loss of earnings when his return to seasonal work was overtaken by a junior member of staff. The hearing was arranged for March 3, 2017. Only the respondent was in attendance. In accordance with my responsibilities under Section 41 of the Act, I provided an extension of time for the parties to present any evidence relevant to the dispute. I received submissions from both parties and supplementary submissions followed, concluding in the last week of March, 2017. |
Summary of Complainant’s Case:
The complainant raised two issues for investigation.
1 Custom and Practice which allows recall of seasonal workers on a seniority basis.
2 Loss of earnings for the complainant in 2015.
The Union, on behalf of the complainant sought implementation of the seniority agreement going forward and a restoration of €10,000 loss of earnings.
The complainant has been employed since 2006 as a casual/seasonal worker. This usually covers from the end of February to early October with occasional breaks in between .Each year the casual workers are recalled on a seniority basis as a long standing practice.
In 2015, a new worker was hired ahead of the complainant in the casual position .He was in place for a considerable number of weeks before the complainant was recalled on September 28, 2015.
The Union wrote to the respondent on 15 September, 2015 requesting a meeting to address
1 Delayed recall for the complainant and 2. Subsequent loss of earnings.
The meeting took place on October 23, 2015 and the respondent outlined the company position on 10 November, 2015.
The respondent informed the Union that the new employee was hired for a specific building project .The respondent disputed the stated loss of earnings as they contended that seniority did not apply given that “ this work was not related to the type the complainant is engaged in “.
The Union contend that the new employee had encroached into “ cropping “, which was the complainants work in addition to wall building .
The Union received a copy of both submissions presented by the respondent at the hearing and responded on March 23, 2017.
On the Preliminary issue of time limits, the complainant affirmed that the Union wished to resolve the matter through mediation, but this was not available, thus the case ended up in Adjudication.
The Union submitted that the respondent had agreed to Adjudication on 19 October, 2016 and contended that it was unreasonable and unlawful for the respondent to raise jurisdictional issues at the hearing.
During 2015, the complainant had not wished to take his case o the WRC, but there was a delay in his recall in 2016 and he became concerned again on the seniority issue.
The complainant disputed that there was a secondary employer involved during the break times in employment with the respondent .The complainant is habitually laid off by the respondent.
The employee referred to as the person encroaching in the complainants work was the employee who commenced in July 2015.This was the time that the complainant was standing by waiting for the call to return .This recall occurred for the complainant on September 29, 2015.
The Union re-stated their claim, that the seniority agreement is affirmed and loss of earnings be awarded to the complainant.
Summary of Respondent’s Case:
Preliminary Issue The respondent refuted the claim in its entirety .The respondent made a preliminary submission on time limits in relation to the claim .They submitted that the use of the Industrial Relations Act 1969-1990 for the avoidance of time limits, which are imposed with good reason on other employment related legislation cannot be considered as fair and reasonable .The events at the centre of the case occurred in relation to the 2015 Harvest , while the claim was not presented to the WRC until after the 2016 Harvest . The respondent submitted that the claim is misguided .The complainant worked 5 months in 2015 and 7 months in 2016.His hours were increased in 2016. The respondent is a leading business in seeds and Agri chemicals .It employs 79 people .The complainant commenced work on 6 August, 2008 and has consistently worked with the respondent 4-9 months in each year since 2008. The respondent submitted a log of time worked by both workers involved in this case.
Complainant Comparator 2010 5 months 2011 9 months 2012 7 months 2013 6 months 2014 7 months 7 months ( March to October ) 2015 5 months 9 months ( february to November ) 2016 7 months 7 months The respondent submitted that the complainant is a seasonal worker who works Spring and Harvest with the respondent, leaving in late May to work on silage for another employer. In 2015, the complainant was called for the Spring season on 27 February and left on June 3 to attend to silage .The respondent received a letter from the Union on 15 September stating that the complainant had not been recalled. He was recalled on September 29, 2015.This was later than the previous year due to a 30% reduction on harvest wheat. The parties met on 23 October, 2015 to discuss the issue .The respondent set out their response by way of letter on November 10. The respondent submitted that the comparator was also a seasonal employee, who commenced work in 2012. He worked a continuous nine months in 2015. The respondent contended that the company did not have a case to answer .Recall dates vary on a seasonal basis and are highly weather dependent .The complainant was late getting his recall in 2015 as there was less work than usual . The respondent has since recalled the complainant, on March 3, 2016 in line with the custom and practice of their seasonal employment relationship .He left on June 9, 2016, was re-engaged for the harvest on 27 June and stayed on until 4 November, 2016. The respondent submitted that the company had acted fairly and reasonably in all the circumstances. There were no uniform stop and start times .There was no agreement as referred to in the complaint lodged. On March 23, 2017, The respondent made a supplementary submission on foot of reception of the complainant’s submission.
2 The respondent re-affirmed a number of points in the primary submission first presented at the hearing. During the hearing, the respondent stated that this was the first time that the issue of “call back” had been raised by an employee with the company. They also submitted that they were aggrieved that the hearing was attended solely by the respondent, as the company had gone to a lot of trouble to attend; they wished to press on with the hearing of the case.
Preliminary Issue : I have been asked to investigate a Trade Dispute in accordance with Section 13(3) of the Industrial Relations Act, 1969. This involves me making a recommendation to the parties to the dispute setting forth the Adjudicators Opinion on the merits of the Dispute. In this case, I held a hearing on March 3, 2017, to assist in my investigation of the claim. I was satisfied that both parties were on notice of the hearing as I had retained the notification details. On the morning of the hearing, The respondent was the sole attender. I endeavoured to ascertain the intentions of the complainant and discovered that the Union claimed that they had not received notification .I rechecked the Database and confirmed that both parties were notified from the WRC Headquarters. I consulted with the party present at the hearing and canvassed their views on adjourning the hearing to allow for the complainant to attend. This was not supported. I agreed a course of action at the hearing that submissions would be canvassed from the complainant and both submissions would then be exchanged allowing time for further commentary from both parties prior to making my recommendation in the case. I discussed this course of action with the Union and indicated that I would consider the submissions as they arrived. The Union volunteered to be available for a further hearing, if needed .The respondent made a further submission later that day that the claim should be dismissed due to non attendance of the complainant .I re-affirmed the course of action agreed by all parties on the day of the hearing and I awaited the submissions. This is clearly a Trade Dispute concerning an employer and an employee .I accept that the respondent submitted an agreement to the matter being heard by an Adjudicator on 14 October , 2016.I am not persuaded by the respondent submission on time limits in this case .There are no temporal limitations to the opportunity for an Adjudicator to recommend a way forward in a Trade Dispute , providing the complainant is in employment ,or within six months of his retirement .I find that I have the jurisdiction to hear this case .
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Findings and Conclusions on the Substantive Claim:
I have considered the parties submissions carefully .I have found that there is a distinct absence of foundation documents, available to me from either party .I was not provided with a contract, a job description, proof of Lay Off/Jobs Seekers Benefit or most importantly a copy of the central agreement which supports the presiding role of seniority in the case. I have found that this can only instil a lack of security for the complainant and uncertainty for the respondent ,which needs to be addressed immediately by the parties .I have picked up on the respondents acceptance of a customised arrangement for recall ,however , in todays workplace ,I find that this needs to be formalised through joint negotiation and a clear agreement recorded within a defined period of time . It seems to me that the employee viewed by the complainant as displacing him on “ cropping “ was not the seasonal worker who worked 2 February to 12 November , 2015 and who was referred to in the company log as the named comparator . In the respondent letter to the Union dated 10 November, 2015, the Financial Director referred to two temporary employees on the base site. One was the worker referred to above and the other referred to the worker engaged on the building project .The complainant referred to this start date being July 2015. I have no way of knowing the breakdown of the work engaged in by the second employee .I have taken note that this was one episode of employment and the building work was completed . I have also taken note that both the complainant and the other seasonal worker completed 7 months work each in 2016. This suggests, at least a return to equilibrium. I have considered the claim for loss of earnings in 2015; I can see that the recall was the latest of all the logged years on record .I must also take note of the weather being a contributory factor .I considered the total of months worked by the complainant on an annual basis which were not disputed. 2010 5 months 2011 9 months 2012 7 months 2013 6 months 2014 7 months 2015 5 months 2016 7 months I find that there was a considerable variance in both the timing of the restarts and recalls over the calendar year which supports the respondent argument. I have insufficient evidence on which to base a concession of the claim for loss of earnings. I find that this aspect of the claim is not well founded. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I am conscious of the need to make a recommendation to address a live employment dispute and I am aware of the fact that the complainant has a long employment record with the respondent , where he has demonstrated an annualised cyclical flexibility .I am also aware that the respondent has demonstrated a willingness to seek to resolve this dispute . I recommend that the parties agree to engage within a four week period of the date of this recommendation to place the current employment relationship on a formal footing by incorporating 1 Confirmation of the long standing Customised Agreement on Seniority on Recall. 2 Notification of restart and recall within an agreed time frame. 3 Provision for formalisation of temporary lay off through the statutory forms. Into a Memorandum of Understanding for the annual season of 2017 and onwards. The situation to be con jointly reviewed at two yearly intervals. |
Dated: 19 May 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle