Labour Court Database __________________________________________________________________________________ File Number: CD91388 Case Number: AD91107 Section / Act: S13(9) Parties: STUFFERS LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. BC140/91 concerning demotion of a worker and loss of earnings.
Recommendation:
5. In the light of the submissions made by the parties and the
evidence provided it is clear that whilst the form of the workers
payment has been changed, she has not suffered any loss of income.
Furthermore, having regard to the pay structure which exists in
the restaurant restoration of her former salary would not be
feasible, or to the workers advantage.
In these circumstances the Court is satisfied that the Rights
Commissioner erred in recommending that the former agreed salary
be restored. The Court therefore decides to uphold the employers
appeal in this respect.
On the question of the workers loss of her supervisory position,
taking account of the change in trade which has occurred,
immediate restoration does not seem possible, but having regard to
the employers undertaking to offer the worker the next supervisory
vacancy the Court recommends that she be paid a sum of £850 as
compensation for the loss of status she incurred. The Court so
decides.
Division: Mr O'Connell Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD91388 APPEAL DECISION NO. AD10791
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: STUFFERS LIMITED
T/A LA FINEZZA RESTAURANT
(REPRESENTED BY RORY O'DONNELL & COMPANY)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. BC140/91 concerning demotion of a worker and
loss of earnings.
BACKGROUND:
2. The Company is involved in the catering industry and operates
two restaurants in Dublin, Coopers Wine Bar Restaurant Dundrum and
La Finezza restaurant in Donnybrook. The worker concerned
commenced employment with the Company as a waitress in the Dundrum
restaurant on 8th April, 1989. Her salary was £125 per week. The
restaurant operated a service charge and as a result each waitress
also received approximately £20 per week in gratuities. In
September, 1989, she was appointed a supervisor in the Dundrum
restaurant. Her salary was increased to £150 per week (£170
including gratuities). During the summer of 1990, the worker
became aware that the Company was going to open a new restaurant
in Donnybrook (La Finezza Restaurant). She applied for the
position of Assistant Manager. She was unsuccessful and was
offered the alternative position of Supervisor at the same rate of
pay which she received in Dundrum. The new restaurant did not
operate a service charge which resulted in a large increase in the
gratuities available to staff. On average staff, including the
worker here concerned, receive £23.74 in gratuities per shift.
When the new restaurant opened in November, 1991, it operated 13
shifts (7 night shifts and 6 lunch time shifts). During the
period November to December, 1990, the restaurant did an enormous
lunch time trade. It subsequently transpired that this was solely
attributable to the Christmas trade. From January, 1991 onwards
the lunch time trade collapsed. In April, 1991, management
decided to cease catering for lunches at all and now only opens at
night. Therefore, only 7 of the original 13 shifts are worked.
As a result of the downturn in business after the Christmas
period, the restaurant manager informed the worker concerned that
a Supervisor was no longer required but that she would continue to
be employed as a waitress with a basic wage of £15 per shift, as
opposed to £10 per shift for the other waitress, with a guaranteed
top up of £10, making a guaranteed minimum payment of £125. In
addition she could receive gratuities of at least £10 extra per
shift resulting in a minimum net salary of £175. The worker
refused to accept her demotion and a 50% cut in her basic wage.
The matter was referred to a Rights Commissioner for investigation
and recommendation and on 25th June, 1991, the Rights Commissioner
issued the following recommendation:-
"In the light of the above I have come to the firm conclusion
that the decision to reduce the pay and status of the worker
was unfair. I therefore recommend that the £75 per week
reduction in net pay should be restored to the worker from
the date on which it was implemented - i.e. January, 1991.
Her status likewise should be restored.
In the event of any problems arising with regard to the pay
and/or status of the worker in the future the matter should
be discussed between the Trade Union and Management and
should agreement not be reached then the matter be referred
back to me for investigation."
(The worker was mentioned by name in the Rights
Commissioner's recommendation).
The Company rejected the recommendation and appealed it to the
Labour Court on 25th July, 1991, under Section 13(9) of the
Industrial Relations Act, 1969. The Court heard the appeal on
23rd September, 1991.
COMPANY'S ARGUMENTS:
3. 1. The Company cannot employ the worker as a supervisor when
that position is no longer necessary and no longer exists.
This was brought about by the reduction in shifts which is an
indisputable fact. In addition the lay-out of the restaurant
makes it unnecessary to have a supervisor as well as a manager
and assistant manager. This was not appreciated when the
position was first offered to the worker in what was a start
up situation.
2. The Company would be happy to employ the worker, who is an
excellent employee, as a supervisor if another position
becomes available. The Company is starting a new restaurant
in Greystones and if the worker wishes to apply for a job as
supervisor with that restaurant, her application would be
given favourable consideration.
3. The Company believes that the position of supervisor in a
restaurant with no service charge would have to be
re-assessed. If the supervisor participates in the gratuities
then an adjustment would have to be made to the basic pay
because it is now clear that anomalies would result. The
Company should have done this when moving the worker from a
service charge situation to a non-service charge one. The
Company had never operated a non-service charge system and did
not know how this plan would work. During the six week period
when the worker was receiving a basic wage of £150, she would
with gratuities have been making an average of £250 per week.
This contrasted with the Assistant Manager's salary of £250
and the Second Chef's salary of £235. The anomaly arises
because a supervisor is a management position and as such
should not be partaking in gratuities available to floor
staff. (Full details of the gratuity system provided to the
Court).
4. The worker concerned has not lost any money as a result of
her move to the new restaurant. In the Dundrum restaurant she
received approximately £170 per week. In the new restaurant
she receives £175 minimum. It is therefore submitted that she
has not been unfairly treated and that the reduction in her
status was a necessary business decision.
UNION'S ARGUMENTS:
4. 1. Since 15th January, 1991, when her earnings and status
were reduced, the worker has been very consistent in her views
that on no occasions did she accept the position put forward
by the Company that she should accept a loss of status or
earnings. The Company has stated that she was transferred to
the new restaurant mainly to supervise the service of lunches.
The worker rejects this. In fact for the majority of her
employment with the Company she consistently worked nights.
2. The Company's treatment of the worker is inconsistent on
the one hand they have no complaints about the workers
performance and honesty and on the other they have not treated
her fairly with regard to pay. She has not received any
increase in her rate of pay since September, 1989. The
imposition of a reduction of £75 per week creates a major
financial hardship. Gratuities received by the worker were
effected by the reduction in her status.
3. The Union believes that there is a requirement for a
supervisor in the restaurant. The number of meals served in
February, 1991, was 2,074. In August, 1991, this had risen to
2,988 and the average spent per customer has also risen.
4. The Union is perturbed at remarks allegedly made by the
Company that if the worker pursued the matter she would be
made redundant. Anyone who suffers a 50% reduction in wages
would take steps to redress the situation. It appears that
the worker concerned was singled out for a reduction in wages.
5. The Union believes that the worker was treated less than
fairly by the Company, particularly with regard to her length
of service in comparison to other employees. The Union
believes that the worker should be re-instated to her former
position and that the Company should compensate her for her
loss of earnings of £75 per week in basic pay from 24th
January, 1991.
DECISION:
5. In the light of the submissions made by the parties and the
evidence provided it is clear that whilst the form of the workers
payment has been changed, she has not suffered any loss of income.
Furthermore, having regard to the pay structure which exists in
the restaurant restoration of her former salary would not be
feasible, or to the workers advantage.
In these circumstances the Court is satisfied that the Rights
Commissioner erred in recommending that the former agreed salary
be restored. The Court therefore decides to uphold the employers
appeal in this respect.
On the question of the workers loss of her supervisory position,
taking account of the change in trade which has occurred,
immediate restoration does not seem possible, but having regard to
the employers undertaking to offer the worker the next supervisory
vacancy the Court recommends that she be paid a sum of £850 as
compensation for the loss of status she incurred. The Court so
decides.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
10th December, 1991. Deputy Chairman
B.O'N./J.C.