INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
1. Appeal against Rights Commissioner's Recommendation No. DC41/96 concerning alleged unfair dismissal.
2. The worker concerned commenced employment with the Company in a temporary capacity as a kitchen porter on 6th April, 1995. His employment was terminated on 26th October, 1995. The worker claimed that he had been unfairly dismissed and referred the matter to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:-
"In that the annual recruitment of seasonal staff approximates to 200
employees, this case can hardly be considered a "stand-alone" issue.
I am satisfied that whilst there may have been a degree of custom and
practice from time to time in relation to seniority of service in lay-offs, it is abundantly clear that no formal agreement exists between the Union and the Company in that regard.
If, in fact, the Union are desirous of pursuing such a course, effectively they would be seeking to substantially change the existing conditions of seasonal recruitment and in my view any such overtures should be addressed on a collective basis.
As it is, however, the worker's contract of employment was quite explicit and clearly gave the Company discretion to terminate his employment, by the service of appropriate notice, and also emphasised that there was no prospects of permanency, at the end of his period of employment.
I am satisfied therefore that Aer Lingus adhered to the terms of the contract and I must therefore recommend that the worker's claim against the Company, for unfair dismissal, fails."
The Rights Commissioner's recommendation was appealed by the Union to the Labour Court on 23rd May, 1996 under Section 13(9) of the Industrial Relations Act, 1969. The Labour Court heard the appeal on 7th August, 1996.
3. 1. It was the worker's understanding that in the event of end of season lay-offs, in keeping with Company/Union Agreements he would be one of the last to be laid off. The worker had longer service than some of his colleagues who were retained in employment.
2. It is long established by custom and practice that within the Catering Department, temporary seasonal employees are laid off on 'first in, last out' basis.
3. The worker had an excellent work record and one week before his dismissal received an exceptionally good assessment from management. The Company discriminated against the worker. It unfairly selected him for lay-off contrary to Company/Union Agreements.
4. The Rights Commissioner failed to consider the issues addressed by the Union in relation to custom and practice and Company/Union Agreements. In the circumstances the Union's claim for re-instatement and/or substantial compensation is justified.
4. 1. The worker's employment as a seasonal catering operative was temporary. The Company uses this employment arrangement to cope with peaks in its operations. There was no indication given that his employment was other than temporary.
2. The worker's contract of employment has been honoured. His contract states:-
"We wish to emphasise that this is a strictly temporary
appointment and that there are no prospects of permanency
at the end of your period of temporary employment."
3. The Right's Commissioner in his recommendation was satisfied that it was clear that no formal agreement exists between the Company and the Union in this regard.
Having examined the circumstances which gave rise to this appeal, the Court has concluded that in the absence of any formal agreement between the parties as to seniority in lay-offs, the Rights Commissioner's recommendation should be upheld.
The Court accordingly rejects the appeal and so decides.
Signed on behalf of the Labour Court
19th August, 1996______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.