INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal of Rights Commissioner's Recommendation IR6654/01/MR.
2. The dispute before the Court relates to the worker's seniority in the Company. The Union claims that the Company should be using March, 1994 as the date he was made permanent and not March, 1996 which is the date being used by the Company. The worker commenced employment with the Company on a temporary basis in 1989. Each year the worker was laid off and recalled as the business dictated. The Union states that the worker should have been appointed a permanent employee after working continuously from March, 1994 to October, 1995 (19.5 months) as per the "Operatives Grades Agreement".
The Union claims that in September, 1995 the worker applied in writing for winter leave for family reasons. Winter leave was not available to part time staff. The Union states that management responded stating that it was accepting the worker's resignation. The worker rejects the claim that he resigned his employment with the Company.
The Company states that the worker was fully aware of the consequences of his resignation in September, 1995.
The dispute was the subject of a Rights Commissioner's hearing which took place on the 20th December, 2002. The following is the Rights Commissioner's Findings and Recommendation :-
Based on the evidence before me, I am satisfied that, whatever the worker might have intended by his letter to the Company in September 1995, the response from the Company was clear and unequivocal.
Given that the worker voluntarily complied with the requests in that response regarding Company property and then left the Company on the 31st October, 1995 without formally querying the wording of that response, I have no option but to find that he resigned from the Company with effect from that date.
In such circumstances, I have concluded that the Company is correct in using March, 1996 as the worker's offical starting date.
" I recommend that the worker and SIPTU should accept that this claim fails."
The worker appealed the Recommendation on the 14th April, 2003, in accordance with
Section 13 (9) of the Industrial Relations Act, 1969. The Court investigated the dispute on the 24th June, 2003.
3. 1. On the 11th March, 1994, the worker returned to work following lay off. He worked through the following winterup to October, 1995, a total of 19.5 months.
2. The worker should have been appointed to a permanent position after completing eighteen months continuous service, as per the Company/Union agreement.
3. The worker applied for winter leave i.e. unpaid leave and stated to his supervisor that he was not resigning from the company.
4. 1. The worker was employed in March, 1994 and resigned in September, 1995. Had he not made the choice to resign he would have been retained in continuous employment and would have qualified for a permanent position.
2. During the winter period of 1995/96 growth in the business necessitated increasing the workforce. Additional temporary staff were recalled; one group in December, 1995 and a second group in February, 1996. The worker was unavailable for work until March, 1996 when he was re-employed.
3. When the worker was appointed to a permanent position in 1996 there was no question of any disagreement or misinterpretation in relation to his date of appointment. This matter only became an issue in 1999 when he felt the financial implications of his decision to resign in 1995.
The Court has considered the submissions of both sides. The Court concurs with the Rights Commissioner's findings and upholds his recommendation. Accordingly, the appeal of the Rights Commissioner's recommendation fails.
The Court so decides.
Signed on behalf of the Labour Court
7th July, 2003______________________
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.