Labour Court Database __________________________________________________________________________________ File Number: CD92682 Case Number: AD92235 Section / Act: S13(9) Parties: JAPAN BOUTIQUE - and - A WORKER;THE IRISH DISTRIBUTIVE AND;ADMINISTRATIVE TRADE UNION |
An appeal against Rights Commissioner's recommendation No. D.C. 106/92 concerning the appropriate rate of pay for a worker.
Recommendation:
5. It appears to the Court that the Rights Commissioner in his
recommendation took into account all of the points relevant to the
issue referred to him, namely, the appropriate rate of pay for the
claimant.
As matters stood at the time of his hearing the case, the
Commissioner, on the basis of the evidence concluded that the
claimant was not in a position that warranted payment of the
chargehand rate. He then went on to detail the specific
conditions in the future upon which that rate should be applied.
The Court does not find that there are sufficient grounds to alter
the recommendation in that regard.
The Court does however consider, having regard to (a) paragraph 2
of his findings and (b) the final paragraph of his recommendation,
that the Rights Commissioner inadvertently arrived at a conclusion
that the claimant had been the recipient, on a retrospective
basis, of a payment for the extra duties/responsibilities which
she contended she had assumed during the period November, 1991 -
September, 1992. Subsequent elaboration by the parties of the
actual payments made do not support this conclusions by the Rights
Commissioner.
The Court notes that there is still a point of contention between
the parties as to whether or not extra duties/responsibilities
were placed on the claimant for the period in question. It
appears to the Court that on balance, the Right Commissioners
accepted that there was substance to the arguments by the claimant
that extra duties/responsibilities had arisen. The Court concurs
with his findings in this respect but having regard to the fact
that he then went on to recommend as he did, in the belief that a
payment made had included a retrospective amount for the period
November, 1991 - September, 1992, decides that no amendment be
made to the Rights Commissioner recommendation, but that an
addendum:
'That the company offer and the claimant accept the sum of
#400 in full and final settlement of her dispute regarding
her rate of pay for the period November, 1991 - September,
1992.'
be added to it.
The Court so decides.
Division: Ms Owens Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD92682 APPEAL DECISION NO. AD23592
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: JAPAN BOUTIQUE
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
A WORKER
(REPRESENTED BY THE IRISH DISTRIBUTIVE AND
ADMINISTRATIVE TRADE UNION)
SUBJECT:
1. An appeal against Rights Commissioner's recommendation No.
D.C. 106/92 concerning the appropriate rate of pay for a worker.
BACKGROUND:
2. The Company is a retailer of Ladies' Fashions and has premises
in Henry Street and in the ILAC Centre. Following a four-week
strike at the Company, agreement was reached between the parties
on the 14th of October, 1992 on all issues except that concerning
the appropriate rate of pay for one worker. The Union claim that
the worker, a shop assistant, was performing duties appropriate to
a Chargehand, under the provisions of the Registered Trade
Agreements. The Company rejected the claim. The dispute was
referred to a Rights Commissioner who recommended as follows:
"That the worker's rate of pay when she returns to work will
be #144.00 per week, progressing to #172.29 per week in
December, 1992, on the clear understanding that she will
adhere strictly to the duties of a Retail Shop Assistant on
par with her colleagues in the same grade in the Company's
outlets
If at any time in the future the Company request her to
resume the duties and responsibilities which she performed
prior to the dispute or if she is assigned to be in charge or
responsible for the work of others, I recommend that she
should be then paid the Chargehand's rate of #199.96 per
week".
The Union appealed against the Rights Commissioner's
recommendation on the 4th November, 1992. The Labour Court
investigated the dispute on the 7th December, 1992 (the earliest
date that was convenient to both parties).
UNION'S/WORKER's ARGUMENTS:
3. 1. In November, 1991 the Manager of the Company informed the
worker that she would be paid an increase of #20 p.w. for
taking charge of staff while he was in the wholesale
department. Thereafter, the worker was referred to as
"Assistant Manageress". The Manager was acting on behalf of
the employer in promoting the worker and in offering her an
increase of #20 p.w.
2. The worker's actual duties before she was demoted were as
follows:
i. Organising lunch breaks, toilet breaks and tea
breaks for all staff in Henry street.
ii. Directing staff in their work on the floor and in
the stockroom.
iii. Handling customer complaints, exchanges and refunds.
iv. Chief cashier.
v. Ordering stock from wholesale.
3. The worker had authority to refund cash when the Manager
was absent, which she did. She was also responsible for
sanctioning staff discount.
4. Her duties were consistent with the duties of Chargehands
in other retail stores.
COMPANY'S ARGUMENTS:
4. 1. The Company is happy to regulate pay and to award agreed
compensation to the worker at the shop assistant rate, in
light of past discrepancies concerning holidays and pay. The
Company reject the claim that the worker was or had ever been
appointed Chargehand by the Company.
2. The employer did not assign the worker to the position of
Chargehand. He did not authorise any other person in his
employment to assign her to the position or to assign her the
responsibilities of a Chargehand.
3. The worker's duties are the same as those carried out by
other Shop Assistants within the Company. These duties
include the job of cashier, checking the float and dealing
with exchanges etc. All exchanges which require a cash refund
have to be sanctioned by the Manager and none of the Shop
Assistants have authority to refund cash without prior
approval from the Manager.
4. The store is a relatively small one being only 1,300 sq.
ft. in area. The are five full-time staff and one security
guard employed in the store. A Manager and a Chargehand would
be superfluous to the needs of the operation.
DECISION:
5. It appears to the Court that the Rights Commissioner in his
recommendation took into account all of the points relevant to the
issue referred to him, namely, the appropriate rate of pay for the
claimant.
As matters stood at the time of his hearing the case, the
Commissioner, on the basis of the evidence concluded that the
claimant was not in a position that warranted payment of the
chargehand rate. He then went on to detail the specific
conditions in the future upon which that rate should be applied.
The Court does not find that there are sufficient grounds to alter
the recommendation in that regard.
The Court does however consider, having regard to (a) paragraph 2
of his findings and (b) the final paragraph of his recommendation,
that the Rights Commissioner inadvertently arrived at a conclusion
that the claimant had been the recipient, on a retrospective
basis, of a payment for the extra duties/responsibilities which
she contended she had assumed during the period November, 1991 -
September, 1992. Subsequent elaboration by the parties of the
actual payments made do not support this conclusions by the Rights
Commissioner.
The Court notes that there is still a point of contention between
the parties as to whether or not extra duties/responsibilities
were placed on the claimant for the period in question. It
appears to the Court that on balance, the Right Commissioners
accepted that there was substance to the arguments by the claimant
that extra duties/responsibilities had arisen. The Court concurs
with his findings in this respect but having regard to the fact
that he then went on to recommend as he did, in the belief that a
payment made had included a retrospective amount for the period
November, 1991 - September, 1992, decides that no amendment be
made to the Rights Commissioner recommendation, but that an
addendum:
'That the company offer and the claimant accept the sum of
#400 in full and final settlement of her dispute regarding
her rate of pay for the period November, 1991 - September,
1992.'
be added to it.
The Court so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
____________________
17th December, 1992. Deputy Chairman.
M.K./J.C.