Labour Court Database __________________________________________________________________________________ File Number: CD95407 Case Number: AD9574 Section / Act: S13(9) Parties: THREE LAKES HOTEL (THE CONSTRUCTION INDUSTRY FEDERATION/ (C.I.F.) - and - A WORKER;SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioners Recommendation No. ST 78/95.
Recommendation:
The Court having heard the submissions of both parties, upholds
the Rights Commissioner's Recommendation.
In doing so, the Court would entreat the employer to be sensitive
to the Rights Commissioner's reference to selection for lay-offs.
The Court so decides.
Division: Mr Flood Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD95407 APPEAL DECISION AD7495
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1990
PARTIES:
THREE LAKES HOTEL
(REPRESENTED BY THE CONSTRUCTION INDUSTRY FEDERATION/ (C.I.F.)
AND
A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
Appeal against Rights Commissioners Recommendation No. ST
78/95.
BACKGROUND:
The worker commenced employment with the Hotel as a Night
Porter on 12th April, 1983. The Hotel claims that there were
a number of complaints over the years regarding the worker
from guests who wished to drink/play cards after hours in the
Hotel. In April, 1994, the present manager issued the worker
with a final warning regarding his attitude to late night
guests. It was decided to switch the worker from the post of
Night Porter to that of Day Porter. The change occurred on
31st May, 1994. It was decided that the worker would retain
the salary of a Night Porter, which was more than that of Day
Porter.
In January, 1995, due to a fall off in business, the Hotel
laid off a number of workers temporarily, including the
worker concerned. A further 25 workers were put on a 3-day
week. Only 4 workers were retained full-time. The worker's
duties were performed by restaurant/bar staff. At Easter,
1995, the worker was recalled to work along with a number of
other workers who had been on temporary/3-day work.
The worker claims that he lost a considerable amount of money
when he was laid off. He claims that he should have been put
on 3-day week or to have been paid for the the period of his
lay-off.
The dispute was referred to a Rights Commissioner and a
hearing took place on 18th May, 1995. The Rights
Commissioner's Recommendation is as follows:
a. I recommend that the Claimant's claim for a return to
the Night Porter's duty fails.
b. I further recommend that his claim for losses of
#3,339.00 due to lay off also fails.
c. In deference to his Trade Union Representative's efforts
on his behalf during the hearing, and in the interests
of clarity and good industrial relations practice, I
further recommend that it is accepted:
i That the Claimant is a permanent employee of the Hotel
in the post of "Day Porter".
ii His weekly pay is #226.24 per week plus tips and baggage
handling fees from tour operators and others.
iii He is subject to lay off always providing that it is not
selective.
iv He has a clear disciplinary record and all previous
incidents are scrubbed from his record.
The Recommendation was appealed by the worker to the Labour
Court on 6th July, 1995, in accordance with Section 13(9),
Industrial Relations Act, 1969. A Labour Court hearing took
place on 12th October, 1995, in Tralee.
WORKER'S ARGUMENTS:
1. The worker was given written confirmation that he would have
"continued" permanent employment "without any loss of pay or
income" at the time that he was transferred to the position
of Day Porter. Six months later he was placed on temporary
lay-off at a considerable loss of income.
2. The worker was employed for 11 years as a single Night Porter
in an extremely busy hotel. He was acknowledged as a good,
conscientious worker. Following complaints from some
customers, the Hotel investigated the matter on three
occasions. On each occasion the complaints were shown to be
untrue.
3. At the time that the worker was on temporary lay-off, 25
other employees were placed on a 3-day week. The worker
concerned should have been treated in a similar manner.
COMPANY'S ARGUMENTS:
1. The Hotel received a number of complaints over the years from
various managers regarding the worker's attitude towards
guests who wished to drink/play cards after hours in the
Hotel. On one occasion, a company cancelled an overnight for
15 people until it was reassured that the worker would not be
present as Night Porter.
2. The Hotel continued to pay the worker his night porter wages
after he was transferred to Day Porter duties. His wages are
#226.24 per week. Night porters who replaced the worker were
on wages of #160-#180 per week. The worker also earns money
from baggage handling duties. The amount of money that the
worker would have lost on temporary lay-off is considerably
less than he claims.
3. The Hotel had no way of knowing how slack business would be
from January to Easter, 1995. It had no choice but to lay
off a number of people. The Hotel does not consider that the
worker had sufficient experience to do the variety of jobs
which were covered by the 25 workers on the 3-day week during
the January-Easter, 1995 period.
DECISION:
The Court having heard the submissions of both parties, upholds
the Rights Commissioner's Recommendation.
In doing so, the Court would entreat the employer to be sensitive
to the Rights Commissioner's reference to selection for lay-offs.
The Court so decides.
~
Signed on behalf of the Labour Court
31st October, 1995 Finbarr Flood
C.O.N./A.K. _______________
Deputy Chairman
Note