INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
WYETH NUTRITIONALS IRELAND
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Appeal against Right Commissioner's Recommendation IR5086/01/MR.
2. The Company manufactures nutritional products in powder and liquid form. The worker has been employed as a general operative since 1993. The Union's case is that the Company failed to appoint the worker to a Permanent Filler Operator position on a 4-cycle shift (now a permanent 3-cycle shift) even though she was the most senior operator. The Union claims that this is in breach of a 1999 Company/Union agreement. The Company's reason for not appointing the worker was because of her poor attendance record in 2000. There was disagreement between the parties as to whether the worker was told the reason for her non-appointment. At the same time, the worker applied for a temporary 4-cycle shift in the warehouse. She was offered the position but refused it as she wanted the other shift.
The Union referred the case to a Rights Commissioner and his recommendation was as follows:-
"I, therefore, recommend that Wyeth Nutritionals Ireland should agree to pay the worker a once-off lump sum of €500 as a gesture of goodwill, and that the worker and SIPTU should accept this payment as an exceptional measure and in full and final settlement of this dispute."
The Union appealed the recommendation to the Labour Court on the 3rd of May, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th of July, 2002, in Limerick.
3. 1. The loss of earnings to the worker due to her non-appointment to the 4 cycle- and subsequent permanent 3 cycle shift - is considerable.
2. The worker's attendance record since 1993 was excellent. She did have a number of days of absence in 2000, but only 3 of those were uncertified.
3. The worker refused the second 4-cycle shift as she wished to work on the first one due to the fact that her husband also worked on it.
4. The Company/Union agreement of 1998 states that the most senior operator will be offered a position first. The Company was inconsistent in offering the worker one shift but refusing her another.
4. 1. Clause 5 of the 1999 Company/Union agreement states that a position may not be offered to the most senior applicant in "exceptional circumstances". In this instance, the worker's poor attendance record in 2000 was the reason given to her. She had already been spoken to about her attendance record.
2. The worker had a requirement to work on a 4-cycle shift which is why she was offered the second position.
3. The Company is willing to implement the Rights Commissioner's recommendation although it believes that it did not breach the agreement.
Having considered all of the aspects of this case and taken account of the submissions made at the hearing, the Court concurs with the findings of the Rights Commissioner.
Therefore, the Court upholds the Rights Commissioner's recommendation and dismisses the appeal.
The Court so decides.
Signed on behalf of the Labour Court
19th July, 2002______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.