Labour Court Database __________________________________________________________________________________ File Number: CD91283 Case Number: AD9157 Section / Act: S13(9) Parties: CAMPBELL CATERING LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. BC316/90 concerning loss of earnings.
Recommendation:
5. The Court having considered all the views of the parties in
their oral and written submissions takes the view that there are
grounds to vary the Rights Commissioner's Recommendation and that
compensation in the amount of #800 should be paid.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr Devine
Text of Document__________________________________________________________________
CD91283 APPEAL DECISION NO. AD5791
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT 1969
PARTIES: CAMPBELL CATERING LIMITED
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. BC316/90 concerning loss of earnings.
BACKGROUND:
2. The worker concerned commenced employment with the Company on
the 26th April, 1985 as a catering assistant. In August 1988 she
was transferred to the Company's newly acquired unit in A.
Guinness Son & Co. (Ire) Ltd., St. James's Gate to work in the Taj
Mahal Restaurant. She was employed there as a cook/catering
assistant with responsibility for the cooking and serving of meals
plus general cleaning duties. Her basic rate of pay was #155.00
per week plus average overtime payments of between #50 and #80 per
week. Following a number of complaints by Management regarding
the hygiene and cleanliness in her area of responsibility, the
Company decided to transfer her back to the position of catering
assistant in the restaurant in St. James's Gate main building with
the appropriate rate of pay. This transfer resulted in a
substantial loss of income. In September, 1990 the Union
submitted a claim to the Company for loss of earnings based on two
and a half times the worker's annual loss. Management rejected
the claim. The dispute was referred to a Rights Commissioner for
investigation and recommendation on the 29th April, 1991. On the
20th May, 1991 the Rights Commissioner issued his recommendation
as follows:
"In the light of the above I must partly uphold the claim by
the Trade Union. I do not believe that compensation to the
equivalent of two and a half years loss of earnings is
warranted. My recommendation is that Campbell Catering
should pay the worker the sum of #1,500 and that this be
accepted by her in full and final settlement of all claims on
the Company in relation to her transfer to the role of
Catering Assistant".
(The worker was named in the Rights Commissioner's
recommendation).
The Company rejected the Rights Commissioner's recommendation and
on the 23rd May, 1991 appealed it to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. A Court
hearing was held on the 24th June, 1991.
UNION'S ARGUMENTS:
3. 1. In response to a Company letter of 18th April, 1990
regarding Managements complaints about cleanliness and
hygiene, the worker concerned explained that she worked on
her own in the Taj Mahal Restaurant from 6.00 a.m. to 2.00
p.m. and it was not always possible to cover the full range
of duties listed in that letter (details supplied to the
Court). The worker also explained that there was a shortage
of cutlery, crockery and cooking utensils necessary to
provide a proper service to the clients of the Taj Mahal.
2. The Union explained to the Company that 90% of the
complaints regarding hygiene and cleanliness could be
attributed to the contract cleaning company's lack of
performance of its duties. The worker concerned was not
allowed to interfere with any aspect of that work. In the
Union's view the complaints should have been addressed to the
supervisor of the Taj Mahal, to whom the worker concerned
reported.
3. The worker concerned was expected to provide the service
of cooking morning meals for between 50 and 60 people on
average, which increased before the Christmas period to
between 60 and 80. The worker also had to undertake a
comprehensive list of cleaning duties. This list was
extensive, and when the worker concerned reported for duty
the following morning, she was held responsible if the
afternoon dishes were left incomplete.
4. The grounds on which the Company effected the transfer
of the worker were spurious and based on financial
considerations (details supplied to the Court).
5. The worker concerned is presently employed in the
restaurant at St. James's Gate and her present rate of pay is
#126.00 per week. Her reduction in earnings amounts to
between #50 to #80 per week. The Rights Commissioner, while
accepting that Management had the right to be dissatisfied
with the level of cleanliness in the area involved, was
satisfied that the worker concerned was not responsible for
the collapse in standards.
6. The worker is willing to accept the terms of the Rights
Commissioner's recommendation. She was awarded a sum of
#1,500 as full and final settlement of her claim and she
feels that this is adequate and fair compensation for her
loss of earnings.
COMPANY'S ARGUMENTS:
4. 1. As a contract caterer the Company is obliged to maintain
standard which are subject to regular review from the client.
In this instance the client was totally unhappy with the
standards of hygiene at this particular unit. In an attempt
to improve the standard in the Taj Mahal restaurant the
Company supplied an additional person for a short period,
sent the worker concerned on a training course and gave her
on-going support by asking another supervisor to assist in
monitoring the standards; however, these measures failed.
2. The worker was also given a cleaning schedule to assist
her in achieving these standards. This schedule was compiled
by a member of Management who had carried out her own
evaluation of the operation and had structured the cleaning
schedule in such a way that the worker concerned and the girl
on the afternoon shift would have sufficient time to carry
out the cleaning duties. This was confirmed by the fact that
when someone was brought in to replace the worker concerned,
when she was on holidays or absent, the cleaning was carried
out to a very satisfactory standard. Regrettably, on the
worker's return, standards would subsequently fall.
3. The worker concerned claims that there was a shortage of
cutlery. The Company took steps to assist her in ensuring
that she had no shortage of cutlery and the Company does
acknowledge that there was a shrinkage problem in this area.
The worker also claims that 90% of complaints received were
attributed to the contract cleaning company's lack of
performance. The contract cleaners were responsible for a
passage way into the catering area and were not responsible
for any areas in the catering section. The worker was also
advised in writing that if she found the area to be
unsatisfactory she was to bring this to the attention of
Management.
4. The Company did not transfer the worker concerned
because of financial reasons. The Company had to take steps
in the Taj Mahal area because complaints were so numerous at
this stage that it would not be unreasonable to assume that
the contract was in jeopardy.
5. Because the worker failed to achieve the standards
required by the Company, Management had no option but to
restore her to the position of a catering assistant. The
Company is surprised at being asked to compensate the worker
for loss of earnings. In other employments it is quite
possible that disciplinary action would have been taken
against the worker for failing to carry out her duties. The
Company acted in a very fair manner in placing the worker in
the main area of operation which, although resulting in the
loss of earnings, meant that she was not disciplined and
would still retain her employment.
6. As a contract caterer, the Company has limited control
over the finances of any particular operation and is at all
times subject to the stringent standards applied by clients
and Guinness is no exception to this principle. The Company
is obliged to ensure that it maintains proper standards. In
this particular case the client was constantly complaining
about the conditions of the Taj Mahal and if the Company had
not taken this step, more serious action would have followed.
7. The Company believes that the loss of earnings were as a
result of the worker's failure to maintain standards, which
she agreed should be applied. Furthermore, as in many
compensation issues, there is no benefit to the Company as it
still has to provide cover in that area and has had to
increase the level of supervision. With regard to the matter
of the Rights Commissioner's Recommendation, the Company
believes that he was somewhat erroneous in the areas he
addressed. These may not have been totally through his own
fault but they resulted in his coming to the wrong conclusion
by making a recommendation for compensation.
8. In his findings the Rights Commissioner acknowledges
that Management had grounds for being dissatisfied though the
Company failed to satisfy him that the worker was responsible
for the collapse in standards. This has been evidenced by
the fact that other people were able to perform the duties
satisfactorily and that a detailed and comprehensive review
was carried out before giving her the cleaning schedule. The
worker was also given additional help to try and achieve
these standards.
The Rights Commissioner was also of the view that there were
other influences, mentioned by the Union, which contributed
significantly to the unsatisfactory state of the area.
The other influences referred to were the contract cleaners
and the lack of equipment. The contract cleaners had no
control or input to the standard of the catering area itself
over which the worker had responsibility. Furthermore, the
lack of cutlery would not have had an effect upon the
hygiene, both personal and operational, which was
unsatisfactory whilst she was there.
DECISION:
5. The Court having considered all the views of the parties in
their oral and written submissions takes the view that there are
grounds to vary the Rights Commissioner's Recommendation and that
compensation in the amount of #800 should be paid.
The Court so decides.
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Signed on behalf of the Labour Court
Tom McGrath
____________________
12th July, 1991
T.O'D / M.O'C. Deputy Chairman