Labour Court Database __________________________________________________________________________________ File Number: CD9493 Case Number: AD9441 Section / Act: S13(9) Parties: CHK (T/A MASTERCHEFS) - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by a worker against Rights Commissioner's recommendation No. BC 218/93 concerning the decision of the employer not to recall two of its workers to further race meetings.
Recommendation:
The Court has considered the submissions from the parties to this
appeal against Rights Commissioner recommendation BC 218/93. That
recommendation dealt with two claimants one of whom appealed the
findings.
The Court accepts that the Company had an obligation to protect
its interest when shortages arise. The Court having examined the
evidence presented to it and taking into account the differences
which exist between the parties has come to the conclusion that as
responsibility for the shortages cannot be conclusively proved the
Company should now agree to replace the appellant on the list for
future employment.
The Court accordingly upholds the appeal to that extent.
The Court so decides.
Division: Ms Owens Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD9493 APPEAL DECISION NO. AD4194
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
CHK (T/A MASTERCHEFS)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by a worker against Rights Commissioner's
recommendation No. BC 218/93 concerning the decision of the
employer not to recall two of its workers to further race
meetings.
BACKGROUND:
2. In 1992, Masterchefs was awarded the catering franchise at
the Curragh Racecourse. It has continued to operate this
contract in 1993 and 1994.
The worker concerned commenced her employment with the
Company in March, 1992, as part of a team comprising two
workers. Her responsibilities included serving customers,
dealing with cash transactions and maintaining stock. She
was also employed as a supervisor.
On 5th October, 1993, the worker was informed by management
that she was suspended from work pending a satisfactory
explanation regarding stock shortages on 19th September, 1993
and 27th September, 1993.
The matter was referred to a Rights Commissioner for
investigation and recommendation (the investigation carried
out by the Rights Commissioner concerned two workers). On
6th January, 1994 the Rights Commissioner recommended as
follows:-
" In the light of the above it must hold that the employer
did not act unfairly in declining to recall either of
the workers for future race meetings".
The workers were named in the recommendation.
The Rights Commissioner's recommendation was appealed by the
Union to the Labour Court on behalf of one worker, on 7th
February, 1994 under Section 13(9) of the Industrial
Relations Act, 1969. The Labour Court heard the appeal on
18th April, 1994.
UNION'S ARGUMENTS:
3. 1. In all discussions with the Company and the Rights
Commissioner the Union requested that the Company
produce the relevant rip-sheets as they are an integral
part of the Company's control system.
2. The Company produced only two rip-sheets. These
rip-sheets were not countersigned by the worker
concerned.
3. No balance relating to stocks and cash is complete in
the absence of rip-sheets. In the circumstances the
Company cannot be certain where the stock shortages
occurred
4. The documentation on stocks and till roll-sheets were
not produced when the worker was suspended on 5th
October, 1992. The normal practice in similar
circumstances is for all documentation to be produced
prior to any suspension being imposed.
5. The worker continues to work for other catering
companies at racecourses other than the Curragh.
6. The worker has been unfairly treated by the Company.
She should be re-instated to her former position and
compensated for her loss of earnings.
COMPANY'S ARGUMENTS:
4. 1. Stock shortages were recorded over a period of time.
Both staff members were warned verbally that this could
not continue. The worker concerned, as supervisor, was
issued with a final warning relating to these matters on
September 23rd, 1992.
2. During the next race meeting (27th September, 1992) both
staff members were responsible for inexplicable
shortages in bar stocks. The losses involved are quite
substantial.
3. It is essential that the Company has full confidence in
every staff member to carry out their duties to the
standard required, particularly relating to the handling
of cash and stock.
4. The cash taken on any day was signed for by either the
worker concerned or her colleague. This is agreed and
accepted by management. All stocks including the
opening stock issued, added goods and the closing stock
are also signed by either of the workers.
5. Under the conditions of employment signed by both the
workers, staff members are responsible for any stock or
cash shortages in their section. In these cases, both
staff members have signed off the stock sheets
confirming their responsibility relating to the
shortages.
6. The Rights Commissioner in his findings has acknowledged
the Company's careful and systematic investigation into
the matter and accepted that serious discrepancies did
arise with regard to stock and cash takings and that the
area of shortages was the responsibility of both
workers. As no explanation was forthcoming the Company
had no option but to suspend both workers from their
employment.
7. It is unreasonable to expect the Company under the
circumstances to engage these workers for any future
race meetings.
DECISION:
The Court has considered the submissions from the parties to this
appeal against Rights Commissioner recommendation BC 218/93. That
recommendation dealt with two claimants one of whom appealed the
findings.
The Court accepts that the Company had an obligation to protect
its interest when shortages arise. The Court having examined the
evidence presented to it and taking into account the differences
which exist between the parties has come to the conclusion that as
responsibility for the shortages cannot be conclusively proved the
Company should now agree to replace the appellant on the list for
future employment.
The Court accordingly upholds the appeal to that extent.
The Court so decides.
~
Signed on behalf of the Labour Court
20th May, 1994 Evelyn Owens
F.B./M.M. _______________
Deputy Chairman