FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HERTEL IRELAND LTD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR18839/04/JC
BACKGROUND:
2. The case before the Court concerns an appeal by the company against Rights Commissioner's Recommendation IR/18839/04/JC.
Hertel Ireland Ltd is a Construction Company and the worker in question was employed as a painter. Follwing a promotion to the post of supervisor the worker was transferred to a site at Clarecastle, Co Clare, however, due to losses incurred by the company on that site, the worker was transferred back to another site at Aughinish Alumina which did not attract the same amount of overtime and resulted in a reduction of the workers earnings. The Union (on behalf of the worker) are claiming that management unilaterally transferred the worker to another site without affording him the opportunity to address the losses incurred at the site. Another worker was subsequently promoted to supervisor at the Clarecastle site.
The company's position is that there was no guarantee that the promotion was permanent and that they reserve the right to transfer workers between sites depending on the exigencies of the company.
The matter was referred to a Rights Commissioner for investigation and recommendation. Her Recommendation issued on 3rd March 2005 as follows:
"On the uncontested evidence of the company I find the claimant was unfairly treated by the respondent. The allegations made against him were not substantiated and were dropped bythe respondent, howeverthe claimant was removed from his superrvisory role on the Roche site and suffered a drop in earnings for the period he would have been acting in that role. While the claimant accepts that the respondent had the discretion to change employee locations at any time he had the reasonable expectation that he would retain the supervisory position to which the respondent appointed him for the duration of the work on the Roche plant. Subsequent to the claimants removal from the Roche site he was replaced by another employee who was paid at the same supervisory rate as the claimant had been".
On the 11th April 2005, the employer appealed the Rights Commissioner's Recommendation to Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court Hearing took place on the 29th June 2005.
UNION'S ARGUMENTS:
3. 1. The employer unilaterally transferred the worker to another site following unsubstantiated accusations of bullying made against him. These actions resulted in the worker incurring a substantial loss of earnings.
2. The worker had a reasonable expectation that he would remain in the supervisory role for the duration of the work at the Clarecastle Site.
COMPANY'S ARGUMENTS:
4. 1. The company transferred the worker to another site as it could not sustain the losses incurred at the site.
2. There was no guarantee that the promotion to the role of supervisor was a permanent one.
3. The transfer back to the original site was not intended to be a disciplinary measure and was not connected to the bullying allegations.
DECISION:
The Court has considered the written and oral submissions of the parties. The Court is of the view that the impact of the company’s actions, in transferring the worker from
the Roche Plant in Clarecastle back to Aughnish Alumina, while not intended to be a disciplinary measure, resulted in a loss of potential earnings for the worker. This impact, coupled with the fact that the worker was not given any opportunity to address the company’s difficulties, leads the Court to concur with the findings of the Rights Commissioner.
In all the circumstances therefore, the Court upholds the Right’s Commissioner’s Recommendation. The appeal is disallowed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th July 2005______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.