Labour Court Database __________________________________________________________________________________ File Number: CD92140 Case Number: AD92174 Section / Act: S13(9) Parties: KINGSCOURT ENTERPRISES LIMITED - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation No. D.C. 19/92 concerning loss of earnings.
Recommendation:
5. The Court has fully considered the views of the parties
expressed in their oral and written submissions.
The Court concurs with the views expressed by the Rights
Commissioner and finds no grounds to amend the Rights
Commissioner's recommendation.
Accordingly the Court rejects the appeal of the Union.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD92140 APPEAL DECISION NO. AD17492
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: KINGSCOURT ENTERPRISES LIMITED
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation No. D.C. 19/92 concerning loss of earnings.
BACKGROUND:
2. The worker concerned was employed in the canteen at Raychem
International in Shannon since 1984 and worked a 40-hour week. In
1990, the catering contract at Raychem was taken over by
Kingscourt Enterprises Limited. On the 27th February, 1991, the
Employer reduced the worker's hours from 40 to 35 and her weekly
wage was reduced from #160 to #140. She was not given the
opportunity to work Saturday overtime between February and
October, 1991 following a disagreement with the Employer (details
supplied to the Court). This latter issue was subsequently
resolved. The Union claimed that the worker was unfairly treated
and referred the issue of her working hours and claim for
compensation for loss of earnings from February to October, 1991
to a Rights Commissioner for investigation and recommendation. On
the 18th February, 1992 the Rights Commissioner issued his
recommendation as follows:
"The core of this dispute arose when the worker was not
offered the cashier/ clerical job in the Canteen in Raychem,
when the catering contract there, was overtaken by Mr. Liam
Moran. Whilst the claimant may have had aspirations to the
post, I am satisfied that the employer had sound and valid
reasons to justify his decision, and that he made a sincere
effort to deploy the worker satisfactorily in other areas of
the operation. However, I believe that the claimant,
notwithstanding her apparent disappointment, acted
unreasonably in declining these overtures, particularly
having regard to her previous experience in the canteen. On
the other hand, Mr. Moran undoubtedly reduced the claimant's
earnings by excluding her from overtime working from
February, 1991 to October, 1991.
On the claim concerning the hours of work, whilst noting the
Union's reference to the J.L.C., the facts are that the
employer is paying a higher basic rate than the J.L.C.
minimum wage for a shorter working week (35 hours). Because
of the potential repercussive implications involved I cannot
recommend the formal imposition of a 78-hour working
fortnight for the claimant. I recommend however, that the
worker for the future, be afforded equitable and appropriate
opportunity to work overtime in excess of 35 hours per week
and that she, for her part, continue to offer her employer
reasonable co-operation and flexibility.
I further recommend that the claimant be paid a lump sum of
#500 in respect of her loss of earnings for the period from
27th February, 1991 to 11th October, 1991, in full and final
settlement of her claim.
(The worker was named in the Rights Commissioner's
recommendation).
On the 28th February, 1992 the Union appealed the recommendation
to the Labour Court under Section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal in Limerick on
the 10th June, 1992.
UNION'S ARGUMENTS:
3. 1. The Union rejected the Rights Commissioner's
recommendation because it did not deal correctly with the
question of agreed working hours for full-time employees in
the catering industry as defined by the J.L.C. The Rights
Commissioner referred to the fact that the worker is on a
higher rate for a 35-hour week than the J.L.C. rate for a 78
hour fortnight. This infers that the employer is at liberty
to reduce her working hours and rate of pay at will and
without reference to the worker, provided that the rates do
not drop below the minimum provision of the J.L.C.
2. When the employer took over the catering contract from
Raychem, the worker concerned was employed as a general
assistant on a 40-hour week. Her weekly wage was #160. The
employer had a legal obligation to honour the terms of the
worker's contract which he took over from the previous
employer (Raychem). The employer's action in reducing the
worker's hours is not acceptable to the Union. Her hours
should be restored forthwith and she should be adequately
compensated for the loss she has sustained in the interim.
3. The employer claims that the worker refused to carry out
certain duties. This allegation is rejected by the Union and
the employer has not substantiated his allegations other than
to say that he offered her night work. The worker has
consistently made herself available to undertake any duties
assigned to her. The Union accepts that she has expressed a
preference for certain work.
COMPANY'S ARGUMENTS:
4. 1. Prior to taking over the catering contract from Raychem in
1990, the employer himself was employed as head chef at
Raychem and had enjoyed a very harmonious working relationship
with the employee concerned. On taking over the contract he
commenced a re-organisation of the canteen in consultation
with the staff. In October, 1990, he offered the worker the
position of evening cook - 40 hours at #4 per hour, in
addition he offered her Saturday work at #7.50 per hour. She
declined this offer. She also declined an offer of night duty
for domestic reasons.
2. In January, 1991, the employer found it necessary to
reduce his costs. Prior to doing so he offered the worker the
post of day/evening cook at #4 per hour for a 40 hour week,
plus alternate Saturdays at #5 per hour. She refused this
offer. The worker requested the cashier/clerical job, which
post the employer could not offer her.
3. Subsequently the employer reduced the hours of the worker
to 35. The reduction also affected other staff members in the
wash-up area and the decision to reduce hours was taken for
economic reasons. The employer tried to help the worker by
offering her other positions which had a 40 hour week.
However he was unable to facilitate her in the position she
required. The employer must run the Company as he sees fit
and put the most suitable workers in the appropriate positions
in order to make the Company as efficient as possible.
DECISION:
5. The Court has fully considered the views of the parties
expressed in their oral and written submissions.
The Court concurs with the views expressed by the Rights
Commissioner and finds no grounds to amend the Rights
Commissioner's recommendation.
Accordingly the Court rejects the appeal of the Union.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
__________________
13th August, 1992. Deputy Chairman
T.O'D./J.C.