INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
CADBURY (IRELAND) LIMITED
- AND -
(REPRESENTED BY INDEPENDENT WORKERS UNION)
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation R036533-IR-05/JC.
2. The appeal concerns a worker who has been employed by the Company for the past fourteen years . The worker was assigned to the position of Rolls Operator on the 7th September, 2004, from his post of Night Storeman. The move was stopped on the basis that the worker due to replace him in the stores was on sick leave and would be absent for a considerable time. The Claimant was appointed to the position of Rolls Operator in December, 2005. The Claimant claimed that he was unfairly treated by the Company because of the delay in appointing him to the position and referred a complaint to a Rights Commissioner for investigation. On the 5th April, 2006 the Rights Commissioner issued her recommendation as follows:
"On the uncontested evidence of the claimant I find that he successfully applied for the position of Rolls Operator in June/July 2004 and was advised by the respondent on 7th September 2004 that he was being reassigned to the position of Rolls Operator from his job of Night Storeman.
I find that the claimant was appointed to the new position with effect from December 2005/January 2006 and that he suffered no financial loss during the period from September, 2004 to the date of his appointment. I find that when it became evident that the implementation of his appointment was going to take such a long period other alternative solutions should have been examined, such as the appointment of a temporary relief Store Person pending the return of the claimant's replacement form sick leave, thereby releasing the claimant to take up the new position from an earlier date. I do not find that the claimant was unfairly treated as the procedure followed by the respondent conformed to agreed procedures in such cases. In all the circumstances I recommend against the claim."
On the 2nd May, 2006, the claimant appealed the Recommendation to the Labour Court . The Court heard the appeal on the 4th August, 2006. The Company declined an invitation to attend the hearing but made a written submission which was considered by the Court.
3. 1. The Company could have facilitated the Claimant in appointing him to the position of Rolls Operator in September, 2004, by appointing a relief worker to the position of Night Storeman. The Company had operated this procedure in respect of other workers in the past. The Company, by its actions, treated the Claimant in an unfair and discriminatory manner. The Union has done everything possible to have the issue resolved in an amicable manner including writing to the Company and the ATGWU to have his claim of unfair treatment processed through procedures, to no avail. The Claimant's request to have a member of the IWU present at a meeting with Management was refused by the Company.
2. The Union fails to understand how a Company of the size of Cadbury's could not make a small adjustment to facilitate a worker who is a conscientious employee with fourteen years' service in the employment, especially when there is a relief stores person available whose specific job it is to fill these types of vacancies when they arise.
1. The Claimant is a member of the ATGWU as per the terms and conditions of his employment. That Union has confirmed to the Company that it would continue to represent the Claimant in the future. The Claimant was invited to arrange a meeting with the Company to progress his claim through the Grievance Procedure in line with the rules and conditions of his employment. The Claimant declined to meet with the Company in line with agreed procedures.
2. The Company has a collective agreement signed with both SIPTU and ATGWU that cover all production operatives on site. Under the rules and conditions of his employment which the Claimant signed up to, he may only be represented by either of these two unions in meetings with the Company. Management has made the position clear to the Claimant that any grievance he had with Cadbury's needed to be processed through agreed procedures before referring the matter to a third party for investigation. To date this has not happened despite his Union representatives from ATGWU and Company representatives being available to attend any necessary meeting.
The Company declined to attend the hearing for reasons which were set out in correspondence to the Court. The Company did, however, set out in writing its attitude to the case, which has been taken into account, together with the comprehensive written and oral submissions made on behalf of the Claimant.
The Court is satisfied that the conclusions reached by the Rights Commissioner and her Recommendation are reasonable and appropriate having regard to the facts of the case. The Court can see no basis upon which it could interfere with the Recommendation.
The appeal is disallowed and the Recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.