Labour Court Database __________________________________________________________________________________ File Number: CD90357 Case Number: AD9040 Section / Act: S13(9) Parties: AER LINGUS OUTDOOR CATERING - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation C.W. 253/89.
Recommendation:
5. The Court having considered the submissions of the parties
does not find grounds to amend the Rights Commissioner's
recommendation and accordingly upholds it.
The Court so decides.
Division: MrMcGrath Mr Brennan Mr Devine
Text of Document__________________________________________________________________
CD90357 APPEAL DECISION NO. AD4090
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: AER LINGUS OUTDOOR CATERING
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation C.W. 253/89.
BACKGROUND:
2. The Company provides a catering service for large functions
which run for two to three days - for example Carroll's Irish Open
Golf Championship, Goff's Sales and the Dublin Horse Show, among
others. The Company employs casual workers to staff these
functions (normally from a list submitted by the Union). The
claimant worked as a casual waitress for the Company on several
occasions. In 1987 she applied to the Union for a change in
status from casual waitress to casual barperson. Her name was
subsequently submitted by the Union on the list of casual bar
assistants for the Carroll's Irish Open Golf Championship. She
worked as a casual bar assistant at that function. When the Union
submitted her name on the same list for the next function, the
Company refused to employ her on the basis that it considered her
behaviour during the Carroll's function to be generally
unco-operative and not up to the standards required. It also
claimed that it had received complaints regarding her attitude.
The Company was, however, prepared to allow her work as a casual
waitress. This was not acceptable to the Union and following an
exchange of correspondence and local discussions over a lengthy
period the Union referred the matter to a Rights Commissioner for
investigation and recommendation on the 18th March, 1990. The
Rights Commissioner, having investigated the dispute on the 22nd
May, 1990, issued the following recommendation on the 31st May,
"I recommend that the Company offers and the worker accepts
further opportunity on a trial basis to demonstrate her
suitability and competence to work as a casual bar
assistant."
This recommendation was rejected by the Union on the basis that no
compensation for loss of earnings was recommended and that the
claimant would be taken back only on a trial basis. The
recommendation was appealed to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. A Court hearing was
held on the 30th August, 1990.
UNION'S ARGUMENTS:
3. 1. The worker concerned has been employed in the hotel and
catering industry all her working life and has worked as a
waitress up to 1987 and has also had bar work experience. She
has worked in a number of Grade A hotels and since 1987 has
been employed as a casual bar assistant by various other
outdoor catering companies (details supplied to the Court).
2. The Company is denying her an opportunity of employment as
a casual bar assistant without just cause or reason. The
question of her suitability or competence has never been
specifically defined and the criteria on which the Company
based its allegations of unsuitability have never been
established to the Union's satisfaction.
3. Up to the time that this issue was raised with Management,
the other casuals who were employed by the Company as casual
bar staff were all male. In the appellant's view she was
discriminated against by the Company.
4. In the absence of any evidence of unsuitability or
incompetence against the worker, the Court is requested to
find in favour of her being reinstated to her position as a
casual bar assistant and that compensation for her loss of
earnings since 1988 be awarded to her.
MANAGEMENT'S ARGUMENTS:
4. 1. When a casual worker is offered work by the Company it is
for a specific function on specific dates. When that work is
finished and paid for there is no commitment or guarantee that
that individual will be offered work in the future. Neither
does that individual have the right to demand that they be
offered work in the future. On each occasion when a casual
worker is offered work it must be treated in isolation - it
does not create for the worker any right to future offers of
work.
2. The worker was found to be adequate as a waitress but not
as a casual bar assistant (details supplied to the Court).
The Company made her aware that it was prepared to offer work
as a casual waitress - however it was her own decision not to
apply for such work. The Company cannot be held responsible
for her actions or for any loss she may have suffered by
taking such a decision.
3. The Company must have the right to decide who is suitable
to work as a casual catering worker. When the Company
recruits permanent employees there is a selection process
followed by a probationary period. If the person selected is
deemed unsuitable during probation then they are not offered a
permanent position and the employment is terminated. With
casual workers the same selection process is not available.
The only way to decide on suitability is to observe a worker
at a function. If that worker is not suitable then they will
not be offered casual work in the future.
4. If the Company is required to offer work on a trial basis
this would create a new position - a new category of casual
worker. Had the appellant been found suitable as a casual bar
assistant that could not create any entitlement on her part to
demand that she be selected for future functions. The Company
is entitled to select the most suitable casual workers
available for each individual function.
DECISION:
5. The Court having considered the submissions of the parties
does not find grounds to amend the Rights Commissioner's
recommendation and accordingly upholds it.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
________________________
28th September, 1990. Deputy Chairman
D.H./J.C.