AD9370

Labour Court Database __________________________________________________________________________________ File Number: CD93342 Case Number: AD9370 Section / Act: S13(9) Parties: GRESHAM HOTEL - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION

Subject:
Appeal against Rights Commissioner's Recommendation No. B.C. 90/93.

Recommendation:
5. The Court, having considered the oral and written submissions
of the parties, does not find grounds to amend the Rights
Commissioner's recommendation. The Court rejects the appeal of
the employer and upholds the Recommendation.


The Court so decides.

Division: MrMcGrath Mr Keogh Mr Rorke

Text of Document__________________________________________________________________

CD93342 APPEAL DECISION NO. AD7093

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969


PARTIES: GRESHAM HOTEL

and

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION



SUBJECT:

1. Appeal against Rights Commissioner's Recommendation No. B.C.
90/93.

BACKGROUND:

2. The dispute concerns the terms and conditions of a worker who
is employed by the Hotel as a Night Duty Manager. She commenced
her employment as trainee-manager in June, 1991 and was promoted
to the position of Duty Manager in December, 1991. According to
the terms of her appointment she is required to work days and
provide relief cover at night.

In July, 1992, the worker was placed on permanent nights. She
raised the issue of permanent night duty with management and was
informed that she would be required to work nights indefinitely.
The provision of a taxi home for her on Sunday mornings and Bank
holidays was also withdrawn. The Company's position on the
dispute is that, as duty manager, the worker is expected to be
flexible according to the needs of the hotel. On the 5th of
March, 1993, an investigation into the dispute was carried out by
a Rights Commissioner.

The Company did not attend nor was it represented at the
investigation. The Rights Commissioner found that the worker's
terms and conditions were altered to her detriment. He
recommended that her salary should be increased from #10,500 to
#14,000 p.a. and that the provision of a taxi on Sundays and Bank
holidays should be resumed.

The Recommendation was appealed by the Company to the Labour Court
on the 27th of May, 1993. The Court investigated the appeal on
the 23rd of August, 1993. At the Court hearing, the Company
advised of its willingness to concede on the issue of the
provision of a taxi for the worker on Sundays and Bank holidays.






COMPANY'S ARGUMENTS:

3. 1. The worker was employed as a duty-manager. The widespread
practice in the hotel sector is for members of the management
team, from trainees to General Managers, to be completely
flexible. It is widely accepted, and common practice, that
managers' hours of work and rosters are changed. When the
claimant took up the position of duty manager this was
explained to her by the then manager.

2. When the night auditor resigned his position at the
Company, the decision to move the worker to night-work was
made for three reasons:

(a) It was a condition of her employment that such movement
could take place when the requirements of the business so
dictated.

(b) She was the least experienced of the remaining duty
managers. Both of the other individuals had been
employed at the hotel for years.

(c) It was felt that the night-duty would give her a chance
to improve upon her performance in a situation that was
less stressful and less demanding than the day-duties.

3. All duty managers are paid on personal rates in line with
their experience within the industry. The same rates apply
irrespective of whether or not the individual is working
predominantly at night or during the day.

UNION'S ARGUMENTS:

4. 1. The worker's conditions of employment were changed to her
detriment. For the past 15 months she has been required to
work nights only even though her letter of appointment clearly
states that her "duties will include days and night relief".

2. The worker's rate of pay, agreed in December, 1991, was
with the provision that she would only be obliged to cover the
relief night duty for two nights every three weeks. She is
now obliged to work nights only. She is the most senior
member of the management who covers the night duty and has the
total responsibility for the servicing of guests in the Hotel
and is also responsible for the Night Porters, through liaison
with the Head Night Porter.

3. The worker's salary is considerably lower than the
salaries of the Day Duty Managers even though they are not
expected to work in a 'stand-alone' situation, as she is. She
receives no allowance for working nights only whereas night
porters receive a 25% night premium.







4. The worker has carried out her duties and fulfilled her
responsibilities diligently and has addressed any issues or
difficulties that have arisen in a professional and
responsible manner.


DECISION:

5. The Court, having considered the oral and written submissions
of the parties, does not find grounds to amend the Rights
Commissioner's recommendation. The Court rejects the appeal of
the employer and upholds the Recommendation.


The Court so decides.
~


Signed on behalf of the Labour Court


Tom McGrath
__________________
6th September, 1993. Deputy Chairman.
M.K./J.C.