INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Recommendation R-037389-IR-05/TB.
2. The Worker has been employed by the Company since 1976. In 1987 the Worker was employed as a Process Services Operator (PSO) on nights. This arrangement did not suit his personal circumstances and he reverted to a General Manufacturing Operator (GMO) on days.
In October 2000 the Worker was assigned to PSO work for 29 hours per week . He continued to work as a GMO for 2 hours each morning. This continued up until August 2005 when the Worker was advised that he was no longer working for Utilities as a PSO. He was put back on GMO work in a full-time capacity.
The Company informed the Worker that if more PSO work became available he would be considered for such work. He was paid the PSO rate while performing PSO work.
The Worker submitted a grievance to the Company concerning the matter through two stages of the grievance process. No resolution could be found.
The issue was referred to a Rights Commissioner for investigation and recommendation. In his recommendation the Rights Commissioner found that the matter was handled most unsatisfactorily and recommended that the Worker be paid
€500 in compensation. He also recommended that the Worker’s future position as a GMO/PSO or a combination of both should be discussed with him and clarified.
The Union appealed the Rights Commissioner’s recommendation to the Labour Court on the 15th May, 2006, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 25th October, 2006.
3. 1. Following on from the Rights Commissioner's Recommendation the Union expect the Company to recognise the rights of the Worker to have his role as PSO/GMO of more than 4 years recognised formally within the workforce.
2. The Union believe that the Worker had established a right to the post of PSO/GMO given that he had been doing the job for over 4 years. Were he a temporary worker he would have established a right to a contract of indefinite duration in this post.
3. The Union maintain that the position of PSO/GMO did not exist prior to the Worker being placed in that position by the Company in October 2000.
4. 1. The Worker is employed as a GMO and has been assigned to work on PSO duties as required. He was paid the appropriate rate for any time spent doing PSO duties.
2. The Company submit that the Worker has had opportunities to move to a permanent PSO position.He was appointed in 1987 but reverted back as evening and nights did not suit his personal circumstances.
3. The Company maintain that subsequent to the Rights Commissioner's Recommendation they did sit down with the Worker and clarify his position going forward.
The case before the Court concerns the Union’s appeal for implementation of the Rights Commissioner’s recommendation. A difference of opinion existed between the parties on the interpretation of the worker’s future position as referred to in the Rights Commissioner’s recommendation.
The Court has examined all the information submitted by both parties. The Court notes that the established source for filling permanent PSO daywork positions is from the permanent PSOs on evenings/nights. Therefore, the Court does not recommend that the appellant should be automatically deemed to be in a permanent PSO daywork position.
However, in all the circumstances of this case, the Court has decided to vary the Rights Commissioner’s recommendation and recommends that in the event of a future requirement for a combined PSO/GMO position on days whether temporary or permanent, the appellant’s significant service in that capacity should be recognised to his advantage and he should be given every opportunity to avail of this work.
Furthermore, the Court upholds the Rights Commissioner’s recommendation to pay the appellant €500 compensation.
The Court so decides.
Signed on behalf of the Labour Court
2nd November, 2006______________________
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.