Labour Court Database __________________________________________________________________________________ File Number: CD90600 Case Number: AD9062 Section / Act: S13(9) Parties: PETER O'BRIEN CATERING COMPANY LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioners Recommendation No. B.C. 145/90 concerning the unfair termination of employment of an employee.
Recommendation:
5. The Court considered the oral and written submissions of the
parties.
The Court has noted that since the Rights Commissioners
Recommendation the Company now caters for certain meetings not
envisaged at the time of the hearing.
The Court considers that in so far as the Company is engaged in
catering for race meetings on which Mrs. Lyons was employed she
should be returned to the roster for such meetings. The Rights
Commissioners recommendation should be amended to this effect.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD90600 APPEAL DECISION NO. AD6290
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: PETER O'BRIEN CATERING COMPANY LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioners
Recommendation No. B.C. 145/90 concerning the unfair termination
of employment of an employee.
BACKGROUND:
2. 1. The Company provide catering facilities on a contract
basis to a number of locations including race meetings. At a
race meeting at Naas Racecourse on 24th March, 1990 a
complaint about hygiene was made by a customer against a
member of staff (details supplied to the Court).
2. Following a written complaint the Company immediately
suspended 2 workers and informed the Union of same by letter
on 28th March, 1990. The Union responded on 18th April, 1990
by rejecting the allegations. The parties did not discuss the
issue at local level and the matter was referred to a Rights
Commissioner for investigation and recommendation.
3. The Rights Commissioner, having investigated the dispute
on 21st September, 1990, issued the following recommendation
on 8th October, 1990.
"In the light of the above I recommend that Peter O'Brien
Catering make an ex-gratia payment of #150 to Worker I.
Worker I will not be returning to employment with Peter
O'Brien Catering since the Company no longer caters for
the meetings on which the worker has been engaged.
Peter O'Brien Catering to pay Worker II an ex-gratia sum
of #300 and to restore him to the roster."
Both workers were named in the Rights Commissioners
Recommendation.
4. The Union rejected the recommendation on behalf of Worker
I and appealed it to the Labour Court under Section 13(9) of
the Industrial Relations Act, 1969. A Court hearing took
place on 26th November, 1990.
UNION'S ARGUMENTS:
3. 1. Both workers involved in the dispute were suspended from
28th March, 1990 and Worker I has not been employed by the
Company since then. This worker has been employed casually by
the Company since it was formed and for race meetings earns
#33.52 per day and a double day's pay for Sunday and Bank
Holiday working. The worker has long experience and is well
versed in hygiene regulations.
2. The worker strenuously denies the allegations contained in
the letter of complaint. With regard to the particular
reference to the use of a jay cloth, the only occasion when
one would be used is when there is lipstick or some other
substance on a glass which would not be removed by the washing
process. The only hot water available is for hot whiskeys.
Cold water only is available from the main taps.
3. The Company have not responded to the Union letter of 18th
April, 1990. The allegations in the letter of complaint
remain unsubstantiated. The Rights Commissioner in making his
recommendation may have been influenced by the Company's
statement that it no longer services the race meetings at
which the worker was employed. This statement is untrue.
COMPANY'S ARGUMENTS:
4. 1. The worker involved is an experienced employee who would
have left the Company extremely vulnerable had regulatory
authorities become involved (letter of complaint supplied to
the Court). The Company has established an excellent
reputation and prides itself on high standards. The behaviour
of the employee is totally inexcusable and unacceptable.
2. The right to call or not to call casual employees to work
is at Managements discretion. The Company is not involved to
the same degree in providing service to the racecourses at
which the worker was employed.
3. The matter at this stage has been investigated at length
by both the Company and the Rights Commissioner. The Company
is prepared to accept the Rights Commissioners Recommendation.
DECISION:
5. The Court considered the oral and written submissions of the
parties.
The Court has noted that since the Rights Commissioners
Recommendation the Company now caters for certain meetings not
envisaged at the time of the hearing.
The Court considers that in so far as the Company is engaged in
catering for race meetings on which Mrs. Lyons was employed she
should be returned to the roster for such meetings. The Rights
Commissioners recommendation should be amended to this effect.
The Court so decides.
~
Signed on behalf of the Labour Court
___________________________
Tom McGrath
21st December, 1990 Deputy Chairman.
J.F./J.C.