Labour Court Database __________________________________________________________________________________ File Number: CD95185 Case Number: AD9542 Section / Act: S13(9) Parties: POWERS SUPERMARKETS LIMITED - and - MANDATE |
Appeal against Rights Commissioner's Recommendation No. DC172/94 concerning the discontinuance of regular overtime for a worker.
Recommendation:
Having considered the submissions from the parties, the Court has
concluded that the Rights Commissioner's recommendation is
reasonable in the circumstances and should be upheld. The Court
notes that the Company is prepared to implement the terms of the
recommendation in full.
The Court, accordingly, rejects the appeal and so decides.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD95185 APPEAL DECISION NO. AD4295
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
POWERS SUPERMARKETS LIMITED
AND
MANDATE
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
DC172/94 concerning the discontinuance of regular overtime
for a worker.
BACKGROUND:
2. 1. The Company operates the Quinnsworth and Crazy Prices
supermarket chains. It employs 71 workers at the
Quinnsworth store in Newbridge. The worker was
appointed as a pro-rata sales assistant in the store in
December, 1990.
2. In January, 1992, the worker was appointed to `flexi
full-time' status. As a result the worker was
contracted to work a 39 hour week over a range of
starting and finishing times (details supplied). As
part of her working week, the worker worked one long day
comprising 8 basic hours, from 9 a.m. to 6 p.m. and a
trading late night to 9 p.m. The long day qualified for
3 hours overtime at double time.
3. In July, 1994, the Company withdrew from the worker the
opportunity to work the 3 hours overtime per week. The
Union sought to have the worker's overtime hours
restored and the dispute was referred to the Rights
Commissioners Service for investigation and
recommendation.
4. The Rights Commissioner investigated the dispute on 25th
January, 1995. His Recommendation (DC172/94), as
follows, was issued on 6th February, 1995:-
"It is clear that due to a number of differing
elements the claimant enjoyed premium earnings from
weekly overtime over a fairly lengthy period and
that she had expectation of its continuation.
However, neither the contractual criteria or the
nature of the employment itself offers any firm
guarantees whatsoever to employees in this regard.
Consequently, I cannot find any grounds for the
worker's claim to a prescriptive right to weekly
overtime, and I must therefore recommend that her
claim, on that basis, fails.
Nevertheless, having regard to the claimant's
frustrated expectations and her apparent good
record, I would further suggest that should there
be a change in circumstances which might
necessitate the restoration of some overtime
working in the foreseeable future management, at
their discretion, give favourable consideration to
extending the worker, reasonable opportunities, in
this area."
(The worker was named in the Recommendation).
5. On 28th February, 1995, the Union appealed the
Recommendation to the Labour Court under the terms of
Section 13(9) of the Industrial Relations Act, 1969.
The Court heard the appeal on 3rd May, 1995.
UNION'S ARGUMENTS:
3. 1. The agreement on the introduction of the `flexi
full-time' grade at the Company's stores places an
obligation on the Company that "overtime for the grade
will only arise on an irregular basis and will not
become a feature of the employment". In this case the
Company was negligent and allowed a situation to develop
whereby the worker was regularly rostered for overtime over a 2 year p
2. The worker has a legitimate expectation of continuous
overtime working. The worker has established an
entitlement to the overtime. Since the Rights
Commissioner's investigation, the Company has decided to
open its store for an extra late night. This provides
an opportunity for the Company to honour the worker's
entitlement.
COMPANY'S ARGUMENTS:
4. 1. The worker's overtime was stopped as part of a routine
cost control measure within the branch (details
supplied). The Company was within its rights to take
this action as the worker had no contractual right to
overtime.
2. The Company operates in a competitive market where
margins are tight. It is obliged to take reasonable
action to protect its business and the employment of its
staff. The worker may avail of overtime where the
Company has no alternative but to offer it. The Company
should not be forced to offer overtime where the need
for it does not arise and where it cannot be afforded.
DECISION:
Having considered the submissions from the parties, the Court has
concluded that the Rights Commissioner's recommendation is
reasonable in the circumstances and should be upheld. The Court
notes that the Company is prepared to implement the terms of the
recommendation in full.
The Court, accordingly, rejects the appeal and so decides.
~
Signed on behalf of the Labour Court
11th May , 1995 Evelyn Owens
J.F./D.T. ____________
Chairman
Note
Enquiries concerning this Recommendation should be addressed to
Mr. Jerome Forde, Court Secretary.