AD9124

Subject:
Appeal by the Company of Rights Commissioner's Recommendation ST304/90.

Recommendation:
"1. I observed the location immediately after the hearing.
I find that the description of the claimant's work place
as a Kiosk to be far from appropriate. The counter is
over 12 feet long.

2. There is no facility or room on the counter for such
work as checking out baskets.

3. To expect the claimant to do such work in any volume is
unreasonable in my view as she would have to lift such
baskets fully laden across all the obstructions on the
counter including a lotto machine. I would consider
this to be possibly injurious to her health and
well-being.

4. I totally disregard the signed statements of her
check-out colleagues as clearly there is a degree of
self-interest present here - i.e. transfer of work away
from themselves. It is also highly unusual for fellow
trade unionists to give testimony against another Union
member who is processing a grievance.

5. In my view the Company rejected reasonable proposals to
settle the dispute. The suggestion that she checks out
baskets with 10 or 11 items I consider to be most
unreasonable.

6. I do not wish to unnecessarily interfere in the
management of the shop but I am forced to make a
recommendation.

7. The claimant indicated that she would carry on in the
difficult circumstances obtaining provided she was
compensated as this would remove the feelings of
exploitation which she obviously experiences.

In these circumstances I recommend that she receives #10 per week
increase on basic rate from the 1st pay week in December, 1990 for
performing the duties complained of by her Union".

The Rights Commissioner's recommendation was rejected by the
Company, who appealed it to the Labour Court on 11th December,
1990. The Court heard the appeal on 26th February, 1991, in
Wexford.

COMPANY'S ARGUMENTS:
3. 1. Since 1983, the worker has been in receipt of #10 per
week more than her colleagues. If she was to receive another
#10 extra, she would be completely out of line with all other
assistants and kiosk operators. This would cause knock-on
claims in other branches and lead to a situation where anybody
else operating the kiosk would expect to automatically receive
a #10 per week increase.

2. The Company reserves the right to move assistants from
the check-outs to the kiosk, without increasing their pay.
Should a #10 increase be applied, this flexibility would no
longer exist.

3. The Company believes that it is reasonable to expect the
worker to check through baskets with a few items at busy
times. It is not the Company's intention that the kiosk
should become another check-out.

4. The Company is a small family-run business, operating in
an extremely competitive market. Its success depends upon
customer service and relations. It would not be Company
policy to force customers with only a few items to stand in
queues for lengthy periods.

5. The Company will do everything possible to alleviate the
pressure on the kiosk by monitoring the kiosk and ensuring
that sufficient check-out operators are available at busy
times. The Company are currently embarking on an expansion
plan which will provide for an extra check-out. This will
also help to avoid a situation of a lot of baskets having to
be checked out at the kiosk.

UNION'S ARGUMENTS:
4. 1. There are no check-out facilities at the kiosk and the
worker has been subjected to considerable pressure in trying
to cope. Customers would use the kiosk when there was no need
to do so, rather than queue at a check-out. If a check-out
was left unattended, management would allow customers go to
the kiosk rather than call a check-out operator. The worker
as a result found herself trying to deal with baskets of goods
without the facilities to do so.

2. The worker has requested the Company to provide her with
a check-out unit and chair, in line with other check-out
operators and this has been refused. Unlike other check-out
operators, the worker concerned has to stand all day.

3. The Union views the situation as being unacceptable and
intolerable for the worker. The stress she has been placed
under has made her ill. Ideally the Union would ask the Court
to prevail upon the Company not to assign these extra duties
to her. Failing this, the Union requests the Court to uphold
the Rights Commissioner's recommendation.

DECISION:

Division: CHAIRMAN Mr Brennan Mr Rorke

Text of Document__________________________________________________________________

CD90723 APPEAL DECISION NO. AD2491

INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)


PARTIES: PETTITTS SUPERMARKET
(Represented by the Federation of Irish Employers)
and
IRISH DISTRIBUTIVE AND ADMINISTRATIVE TRADE UNION



SUBJECT:
1. Appeal by the Company of Rights Commissioner's Recommendation
ST304/90.

BACKGROUND:
2. The worker concerned has been employed by the Company since
1983. She is in charge of the kiosk which is situated inside the
main door of the Supermarket. The kiosk sells cigarettes, sweets,
minerals, ice cream and Lotto tickets. For the first four years
of her employment she experienced no problems in operating the
kiosk. If a customer was in a hurry and had only a few items s/he
was free to by-pass the check-outs and go directly to the kiosk.
This is also the practice in the Company's two other locations.
About three years ago, the worker was informed that the kiosk
should operate as a check-out as well as all its normal functions.
There are no check-out facilities at the kiosk and the Union says
that the worker was subjected to considerable pressure in trying
to cope. In August, 1989, it was brought to the Company's
attention that the worker was unhappy with having to check-out
baskets. A number of meetings held at local level failed to
resolve the matter and it was referred to a Rights Commissioner
for investigation. on 21st November, 1990, the Rights
Commissioner issued the following recommendation.

RECOMMENDATION

"1. I observed the location immediately after the hearing.
I find that the description of the claimant's work place
as a Kiosk to be far from appropriate. The counter is
over 12 feet long.

2. There is no facility or room on the counter for such
work as checking out baskets.

3. To expect the claimant to do such work in any volume is
unreasonable in my view as she would have to lift such
baskets fully laden across all the obstructions on the
counter including a lotto machine. I would consider
this to be possibly injurious to her health and
well-being.

4. I totally disregard the signed statements of her
check-out colleagues as clearly there is a degree of
self-interest present here - i.e. transfer of work away
from themselves. It is also highly unusual for fellow
trade unionists to give testimony against another Union
member who is processing a grievance.

5. In my view the Company rejected reasonable proposals to
settle the dispute. The suggestion that she checks out
baskets with 10 or 11 items I consider to be most
unreasonable.

6. I do not wish to unnecessarily interfere in the
management of the shop but I am forced to make a
recommendation.

7. The claimant indicated that she would carry on in the
difficult circumstances obtaining provided she was
compensated as this would remove the feelings of
exploitation which she obviously experiences.

In these circumstances I recommend that she receives #10 per week
increase on basic rate from the 1st pay week in December, 1990 for
performing the duties complained of by her Union".

The Rights Commissioner's recommendation was rejected by the
Company, who appealed it to the Labour Court on 11th December,
1990. The Court heard the appeal on 26th February, 1991, in
Wexford.

COMPANY'S ARGUMENTS:
3. 1. Since 1983, the worker has been in receipt of #10 per
week more than her colleagues. If she was to receive another
#10 extra, she would be completely out of line with all other
assistants and kiosk operators. This would cause knock-on
claims in other branches and lead to a situation where anybody
else operating the kiosk would expect to automatically receive
a #10 per week increase.

2. The Company reserves the right to move assistants from
the check-outs to the kiosk, without increasing their pay.
Should a #10 increase be applied, this flexibility would no
longer exist.

3. The Company believes that it is reasonable to expect the
worker to check through baskets with a few items at busy
times. It is not the Company's intention that the kiosk
should become another check-out.

4. The Company is a small family-run business, operating in
an extremely competitive market. Its success depends upon
customer service and relations. It would not be Company
policy to force customers with only a few items to stand in
queues for lengthy periods.

5. The Company will do everything possible to alleviate the
pressure on the kiosk by monitoring the kiosk and ensuring
that sufficient check-out operators are available at busy
times. The Company are currently embarking on an expansion
plan which will provide for an extra check-out. This will
also help to avoid a situation of a lot of baskets having to
be checked out at the kiosk.

UNION'S ARGUMENTS:
4. 1. There are no check-out facilities at the kiosk and the
worker has been subjected to considerable pressure in trying
to cope. Customers would use the kiosk when there was no need
to do so, rather than queue at a check-out. If a check-out
was left unattended, management would allow customers go to
the kiosk rather than call a check-out operator. The worker
as a result found herself trying to deal with baskets of goods
without the facilities to do so.

2. The worker has requested the Company to provide her with
a check-out unit and chair, in line with other check-out
operators and this has been refused. Unlike other check-out
operators, the worker concerned has to stand all day.

3. The Union views the situation as being unacceptable and
intolerable for the worker. The stress she has been placed
under has made her ill. Ideally the Union would ask the Court
to prevail upon the Company not to assign these extra duties
to her. Failing this, the Union requests the Court to uphold
the Rights Commissioner's recommendation.

DECISION:

5. Having considered the submissions of the parties, the Court
does not find grounds to alter the Rights Commissioner's
recommendation.
~

Signed on behalf of the Labour Court

Kevin Heffernan
22nd March, 1991 ----------------
B O'N/U.S. Chairman