INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr Nash
1. Appeal of Rights Commissioners Recommendation IR15731/03/GF.
2. The worker concerned was employed by the Company as a General Operative in a temporary capacity on the 23rd April, 2001 at the Carroll's Cross Quarry. His employment was terminated on the 21st December, 2001 due to uncertainty in the market place. He was subsequently re-employed on the 7th January, 2002. When a new Tar Plant was commissioned in April, 2002 the worker was given the position of Tar Plant Operator on a probationary basis. This was at a higher grade. In November 2002 Management decided that the worker was not suitable for the position of Tar Plant Operator and he was re-assigned to other duties as a General Operative. He was made permanent in January 2003 following 18 months of cumulative employment.
The worker was out sick for a period between November and December 2002 and did not receive any payment from the sick fund. The Sick Fund Scheme applies to full time permanent employees who have completed one year's continuous employment with the Company. The worker did not qualify for membership of the scheme at the time of his sickness.
The issue was referred to a Rights Commissioner for investigation and recommendation. The worker did not attend. His representative denied receiving the notice. The case was heard and the Rights Commissioner's recommendation issued as follows:
"In the absence of the claimant I have decided the LRC have provided him with an opportunity to have the case heard. On the basis of the evidence to hand I must decide in the respondents favour."
The Union on behalf of the worker appealed the Rights Commissioner's recommendation to the Labour Court on the 18th August, 2004, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 8th February, 2005.
3. 1.The worker was never informed that he was on probation and no appraisal of his performance in operating the plant was ever carried out.
2. The worker did not receive the correct remuneration when he operated the Tar Plant on a relief basis.
3. By terminating the worker's employment for one day he was disenfranchised and unable to avail of thebenefits of the sick pay scheme.
4. 1.The worker was assessed during his probationary period as a Plant Operator and found to be unsuitable. He was informed of this.
2. The Sick Pay Scheme operates to clear guidelines agreed between the Union and the Company. The worker did not fulfil the conditions of the Scheme.
The case before the Court concerns (a) the removal of the claimant from the Tar Plant with a consequent reduction in earnings and (b) the application of the sick pay scheme to the claimant.
The Court has examined the details as submitted by both sides. Both parties stated that when the worker accepted the position at the Tar Plant he expressed some concerns about his ability to carry out the job satisfactorily as the operation involved a computer based control system. The Company stated that while the claimant was working satisfactorily as a General Operative, there were some difficulties with his work in the Tar Plant and concluded that he was not suitable to do the job on a full time basis, however, it was prepared to assign him to the Tar Plant periodically as a relief Blacktop Plant Operator.
The Court accepts management's right to appoint the most suitable person to positions within the Company. However, as a gesture of goodwill, in recognition of his willingness to stand in on relief in the Tar Plant when there was no other worker available and for which he received no recognised remuneration, the Court recommend that he should be paid a once off lump sum of €200 plus the outstanding payment due. The Company indicated to the Court that this was an ommision on its part and indicated that payment would be made without delay. Therefore, the Rights Commissioners recommendation is varied accordingly.
The Court has examined the details of the Company's sick pay scheme and its operation in practice and is satisfied that the claimant did not fulfil the necessary conditions and therefore was not eligible for sick pay benefit for the period in dispute. The Court uphold the Rights Commissioner's recommendation. The appeal fails.
Signed on behalf of the Labour Court
24th February, 2005______________________
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.