FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : POWER SUPERMARKETS LIMITED - AND - MANDATE DIVISION : Chairman: Ms Owens Employer Member: Mr Pierce Worker Member: Mr Rorke |
1. Appeal by the Union against Rights Commissioner's Recommendation No. RC 140/97.
BACKGROUND:
2. In October, 1996 a former management trainee who worked on a full-time basis, in Crazy Prices, Santry, was transferred to a full-time sales assistant post in the fruit and vegetable department at that store. The union claimed that the company was in breach of procedures, that the company was filling a full-time vacancy and, accordingly, it should have been advertised and interviews held before the post was filled. The company stated that the worker was being located within the fruit and vegetable department temporarily in order to gain experience and training. The Company claimed that no vacancy existed.
The dispute was referred to a Rights Commissioner for investigation on the 27th May, 1997. The Rights Commissioner issued his recommendation as follows:
"I recommend that the Union accepts the Company position in this instance".
On the 10th June, 1997 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 18th July, 1997.
UNION'S ARGUMENTS:
3. 1. The fruit and vegetable department is staffed by one full-time and five pro-rata workers. The full-time employee works 39 hours per week, the other staff work from 25 to 36 hours per week. No overtime is worked. The former management trainee works 39 hours plus 2 late nights overtime of 3 hours per night.
2. No consultation took place with the union. The full-time post was not advertised and workers were not afforded the opportunity to apply for the position. By locating the former management trainee in the fruit and vegetable department the company effectively excluded all pro-rata staff in the store from applying for the improved position which carries with it full-time hours of 39 plus 6 hours at double time.
3. Since the appointment some workers in the department have had their working hours reduced. There is a level of disillusionment and one worker left the employment because of the lack of prospects of full-time work.
4. If full-time appointments are to be made they should be given to workers who have full- time posts in all but name. Full-time positions should be given to those employees who have worked in excess of 35 hours per week for 13 weeks or more as they are effectively full-time workers without the security of full-time employment. The company/union agreement stipulates that pro-rata staff work a maximum of 30 hours per week but the 5 workers in the fruit and vegetable department work very nearly full-time hours.
5. The post filled by the former management trainee should be advertised and interviews held, when his period of so called 'experience and training' is completed. The employees in the fruit and vegetable department should be compensated for any loss incurred since his arrival in that department.
COMPANY'S ARGUMENTS:
4. 1. The decision to transfer the worker to the fruit and vegetable department was made following discussions between management and the worker concerning his long term suitability to continue in a general management post. It was initially agreed that it would be in his best interest to transfer from his management to a sales assistant role. The worker expressed an interest in the fruit and vegetable department and management exercised their discretion and facilitated the worker with a move into that department.
2. In these unique circumstances no vacancy existed. The worker's move into the department gave rise to an addition to the staff structure. The company accepted that this was an anomaly and an added cost to the agreed structure.
3. It is company policy to promote from within the store whenever possible. Promotional vacancies are advertised internally and selection is based on workers' suitability. Workers' promotional prospects were not adversely affected as there was no promotional vacancy in this store. At the time all staff had the opportunity to apply for 5 flexi full-time posts as part of a company/union agreement. No staff in the fruit and vegetable department availed of this opportunity.
4. There can be no automatic progression to full-time posts for staff working 35 hours per week as it would have serious 'knock on' effects in all other stores. It is cost increasing and prohibited under the cost stabilising clauses of the Programme for Competitiveness and Work and Partnership 2000.
5. In this unique situation management simply sought to facilitate a worker, who agreed to move from his management post to a sales assistant role in the fruit and vegetable department. This had no adverse effect on existing staff in that Department. The employee worked 45 flexible hours p.w. and did not receive overtime pay. Management must retain the right to exercise such discretion in unique circumstances when they arise.
DECISION:
Having considered the submissions from the parties the Court is satisfied that the Rights Commissioner's Recommendation is not unreasonable in the circumstances and should therefore be upheld.
The Court accordingly rejects the appeal and so decides.
Signed on behalf of the Labour Court
Evelyn Owens
24th July, 1997______________________
T.O'D./S.G.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.