Labour Court Database __________________________________________________________________________________ File Number: CD94442 Case Number: AD9472 Section / Act: S13(9) Parties: CASH AND COMPANY LIMITED - and - MANDATE |
Appeal by the Union against Rights Commissioner's Recommendation No. BC67/94, concerning loss of earnings.
Recommendation:
Having considered the submissions from the parties the Court is of
the view that the Rights Commissioner's recommendation is
reasonable in the circumstances and should be upheld.
The Court accordingly rejects the appeal and so decides.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD94442 APPEAL DECISION NO. AD7294
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
CASH AND COMPANY LIMITED
AND
MANDATE
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. BC67/94, concerning loss of earnings.
BACKGROUND:
2. The worker concerned commenced her employment with the
Company in 1983 as a chargehand. She is paid basic pay plus
commission of 1.25% of sales. The worker was appointed to
the Separates Department (Ladies Fashions)and remained there
until she was transferred in 1993 to the Lingerie/Corsetry
and Children's Departments. The Union claims that the worker
has suffered a substantial loss of earnings as a result of
the transfer. The Company's position is that it is the
prerogative of management to move staff from department to
department and that no guarantee can be given regarding the
retention of commission earnings in previous departments.
The dispute was referred to a Rights Commissioner for
investigation and recommendation. On 13th July, 1994 the
Rights Commissioner recommended as follows:-
"In the light of the above my recommendation is that
Cash and Company Limited should make an ex gratia
goodwill payment of #750 to the worker and this be
accepted by her in full and final settlement of this
claim.
I make this recommendation in the strict context that
its direction and substance will not be used as a
precedent by the Trade Union."
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the
Union to the Labour Court on 16th August, 1994 in accordance
with Section 13(9) of the Industrial Relations Act, 1969.
The Labour Court heard the appeal in Cork on 5th October,
1994.
UNION'S ARGUMENTS:
3. 1. The worker's financial commitments were calculated on
the basis of a certain level of income. Since the
transfer she has suffered inconvenience and hardship.
The loss of earnings will also impact on her pension
entitlements.
2. Management's right to transfer staff from department to
department is not in question but in the circumstances
management should have transferred the junior chargehand
in the Separates Department.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned enjoyed "unusually high" commission
earnings in 1992/1993 because of the staffing
arrangements in the Separates Department. One of the
three staff in the commission pool was on maternity
leave, leaving commission to be shared by two staff
members.
2. Following the Rights Commissioner's hearing a number of
meetings took place between the parties which culminated
in the Company making the following proposals:-
(a) to create a commission pool made up of the
Lingerie/Corsetry and Childrens Departments,
benefiting the worker concerned in terms of
commission earnings. This was put into effect on
18th June, 1994;
(b) to make a goodwill payment to the worker.
3. In June, 1994, the commission pooling arrangement was
also changed in the Separates Department. A new larger
pool embracing all ladies fashion departments was
created. The average commission earnings per person for
this pool for the period mid-June to mid-September was
#43.15 per week. This compares with #41.26 per week for
the Lingerie/Corsetry, and Children's Departments for
the same period.
4. The worker's position has been dealt with in a fair and
equitable manner. Taking account of her length of
service and position of responsibility the Company
endeavoured to resolve the problem that was highlighted
for the period November, 1993 to June, 1994 on the basis
of a goodwill payment. This payment was further
enhanced by the Rights Commissioner's recommendation.
DECISION:
Having considered the submissions from the parties the Court is of
the view that the Rights Commissioner's recommendation is
reasonable in the circumstances and should be upheld.
The Court accordingly rejects the appeal and so decides.
~
Signed on behalf of the Labour Court
10th November, 1994 Evelyn Owens
F.B./M.M. ____________
Chairman