AD977

FULL RECOMMENDATION CD/97/23 APPEAL DECISIONNO.AD977 (327/96) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NDT SERVICES LIMITED - AND - A WORKER DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu

SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No. DS327/96.


BACKGROUND:

2. The dispute before the Court concerns a claim by the worker that he was unfairly dismissed by the Company. He was employed as a sheetmetal fabricator from July, 1995 to December, 1995 when his employment was terminated by the Company. He claims that he never had any complaint from management regarding his work or his commitment to the Company.

The Company claims that the worker was employed on a temporary basis i.e. week to week due to fluctuations in the Company's workload. He signed a contract to that effect. It rejects the allegations that the worker was unfairly dismissed.

The worker also claims that another sheetmetal worker who was also on a temporary contract was given notice that his contract of employment was terminated. However, this person is still working full time with the Company.

The Company claims that the other worker referred to was subsequently retained as (a) he had 5 years' service with the Company and (b) a new order came in which necessitated his retention.



The worker referred the dispute to a Rights Commissioner. The Rights Commissioner investigated the dispute on the 23rd October, 1996 and in his recommendation DC327/96 recommended that:-

"It is quite apparent from the documentation presented and evidence given that the worker could not have had any firm expectation of continuous or permanent employment and also that the employer fully complied with the terms of his contract of employment. On those grounds therefore I can only recommend that the claimant was not unfairly dismissed.

However, given that the claimant was let go just a few weeks before Christmas I further recommend that NDT Services Ltd., purely as a gesture of goodwill and without prejudice or precedent for the future, make an ex-gratia payment equivalent to 2 weeks wages to the worker which he should accept in full and final settlement of his claim".

(The worker was named in the Rights Commissioner's Recommendation).

The worker appealed the recommendation to the Labour Court on the 23rd December, 1996. The Court heard the appeal on the 12th February, 1997 under Section 13(9) of the Industrial Relations Act, 1969.


WORKER'S ARGUMENTS:

3. 1. The worker claims that he was unfairly dismissed by the Company. He never received any complaint from management concerning his work.

2. Another worker who was also on a temporary contract was retained by the Company while his employment was terminated.

3. The Company has continued to advertise in the daily newspapers for sheetmetal workers.

4. The worker claims that he never received a 2% increase which was due from October, 1995. He also claims that the Company owes him petrol money and travel expenses.


COMPANY'S ARGUMENTS:

4. 1. The worker was employed on a temporary basis. He signed a contract to that effect.

2. There was a downturn in the volume of work available and as a result two workers on temporary contract were let go.

3. There has been no increase in the number of skilled staff since the worker was let go.

4. The Company is endeavouring to build a reserve pool of skilled staff. The worker is on that reserve list.




DECISION:

The Court notes the Company commitment to recruit this Employee back into the Company should a vacancy arise in the future.

The Court is surprised to find that this Employee was being paid significantly less than his fellow craft colleagues, for the same work.

However, having considered all the evidence presented the Court finds that the Rights Commissioner's Recommendation of an exgratia payment in full and final settlement was not unreasonable.

The Court accordingly rejects the appeal and upholds the Rights Commissioner's Recommendation.

The Court so decides.



Signed on behalf of the Labour Court



Finbarr Flood
28th February, 1997______________________
L.W./S.G.Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.