INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
BORD NA MONA
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Appeal of Rights Commissioner's Recommendation IR19367/04/LM.
2. The appeal concerns a worker ( an employee of Bord na Mona Energy Ltd.) who commenced employment on the 16th June, 1986. He is employed as a seasonal worker. In June, 1996, he qualified as an articulated truck driver. In September, 2003, a designated road transport driver was forced to go on sick leave due to a serious illness. He was replaced by another worker who was a suitably qualified driver (from Bord na Mona Horticulture Ltd). The Union claimed that the Claimant suffered a considerable loss of wages as a result of Management's decision not to offer him employment in the "Road Transport Division" in line with existing agreements relating to seniority and custom and practice. The Union claimed compensation equivalent to the amount of wages paid to the nominated relief driver for the period in question (16th October, 2003 to May, 2004). Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 26th November, 2004, the Rights Commissioner issued her Conclusions and Recommendation, as follows:
Having considered the oral and written and evidence presented at the hearing and taking cognisance of all the circumstances, I am satisfied, that it was appropriate for the company in this instance to assign Mr M, a trained and available seasonal from Horticulture Ltd, to Horticultural Road Transport.
Having regard to the aforementioned the company's position is upheld."
On the 14th December, 2004, the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 18th November, 2005.
3. 1. The issue of service is sacrosanct in the Company, all other things being equal. The start date for an employee has always been used to designate seniority. The claimant's start date is more senior to the worker chosen by Management.
2. The Rights Commissioner does not allude to the reasoning or the rationale as to why she arrived at the particular Recommendation.
3. The letters of comfort received by the Claimant in March, 1999, were clearly breached. He was assured (as was the Group of Unions) that workers who transferred from the former Horticulture Division to Bord na Mona Energy Ltd would not have any change in their existing terms and conditions. There is a clear breach of contract here as the primary argument put forward by the Company is that the chosen worker was preferred over the Claimant because he was an employee of Bord na Mona Horticulture Ltd.
4. The Claimant had applied for the post of relief driver and was successful. He had obliged the Company by taking up driving duties whenever he was asked. The Claimant carried out these duties for a considerable number of years.
5. The Claimant is senior to the chosen worker by virtue of his start date which is how seniority has always operated in the Company. The Claimant had been instructed by Management to take up lorry driving duties on the 12th October, 2003. This decision was subsequently reversed.
6. The Union accepts that there was no financial gain to the Company from its actions.
7. The Union is seeking a sum of €27,500 by means of compensation for the Claimant. This is approximately the equivalent to the sum the Claimant has lost as a result of the Company's decision to employ the other driver in his place. The Union is also seeking the re-instatement of the Claimant as the relief driver.
4. 1. The chosen driver was attached to the Horticulture Business. He was trained and available because of lay-off and was called upon to provide the relief cover for the Road Transport operation. The chosen driver has over thirteen years service with the Company and has worked mainly in Horticulture factory operations.
2. The Claimant is a seasonal employee of Bord na Mona Energy Ltd which is the Company mainly involved in peat production activities on the bog. He has worked mainly on bog production activities and has accumulated service with the Company of over nine years which is a total of over four years less than the accumulated service of the chosen driver. The Claimant has provided relief driving cover in the past when there would not have been a trained seasonal employee available from within Horticulture Ltd. When the requirement for a relief driver arose the Claimant was actively involved and employed on bog production and continued to be employed in this area for a further two months. It was entirely appropriate and operationally necessary that the chosen worker, a trained and available Horticulture Ltd seasonal employee, be brought back from lay-off for this Horticulture Road Transport activity.
3. The Company admits the Claimant was requested to take up driving duties in October, 2003, for a different assignment. However, the Company was unable to proceed due to the unavailability of appropriate transport at that time.
4. The Company gained no financial or other benefit from the approach it took in providing cover for Road Transport operations. The cover for Road Transport operations was provided using a suitably trained and available internal resource from Horticulture Ltd. The Union's claim is in effect a claim that the Company should pay twice for the Road Transport operation that took place between October, 2003, and May, 2004.
The Court has come to the view that the Recommendation of the Rights Commissioner in respect of the events of September, 2003, is reasonable and should be upheld. The Court decides accordingly.
For the sake of clarity and so as to avoid similar disputes in the future the parties should now agree clear and definitive criteria for the determination of seniority. In that regard the Union should communicate its position to Management and the parties should then seek to conclude a formal agreement which can be applied in all future situations in which seniority is a relevant consideration.
With this modification the Recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
29th November, 2005______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.