FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation IR3032/00/CW.
BACKGROUND:
2. The Union's case concerns the Company's decision to reduce the worker's rate of pay from £5.81 (7.38 Euro) to £4.40 (5.59 Euro) per hour in September, 2000. The Union is seeking (1) that the worker's rate be restored and (2) appropriate retrospection.
The worker commenced employment as a sales assistant in Tesco, Nutgrove on the 21st of February, 2000, and was put on the 4th point of the scale i.e. £5.81 (7.38 Euro) per hour. The Company claims that the reason she was put on this point was that she claimed that she had 2 years' relevant retail experience (in a Spar store) and that she had been receiving more than £5.00 (6.35 Euro) per hour. Towards the end of March, 2000, following an enquiry, the Company decided that the worker was on a higher point on the pay scale than was appropriate. Following a meeting between the store manager and the worker in April, 2000, her rate of pay was reduced to the first point on the scale - £4.40 (5.59 Euro) per hour. The Company claims that this was because the worker had given misleading information at the interview.
The Union contacted the Company a month later and the worker's rate was returned to £5.81 (7.38 Euro), pending a meeting between the parties. This, however, caused problems for some of the staff who were on a lower rate of pay than £5.81 (7.38 Euro), and an unofficial picket took place. Following a further meeting in September, 2000, the worker's rate was again reduced to £4.40 (5.59 Euro).
The Union referred the case to a Rights Commissioner and his recommendation is as follows:-
"I recommend that the worker move to point 3 on the scale from point 1 on her anniversary in February, 2001, and to point 4 in February, 2002, where she remains for a two year period."
The Union appealed the recommendation to the Labour Court on the 28th of March, 2001, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 2nd of October, 2001.
UNION'S ARGUMENTS:
3. 1. The worker denies that she misled the Company at her interview as it claims.
2. The worker was offered and accepted a contract of employment on the basis that she would be paid £5.81 (7.38 Euro) per hour. The Company should honour the contract.
3. The application form filled in by the worker is blank in regards to previous experience, as indeed, is most of the form.
4. The dispute only arose as a result of difficulties created by other members of staff. The Company took the easy option by punishing the worker.
COMPANY'S ARGUMENTS:
4. 1. The worker was offered the rate of £5.81 (7.38 Euro) because of the information she gave at her interview regarding previous experience. She stated that she had 2 years' retail experience. At the meeting in April, 2000, she admitted that she had misled the Company and, in fact, only had 6 months' experience. As a result, her rate of pay was reduced to the appropriate point.
2. The Company would have been within its rights to have taken disciplinary action against the worker, but took a more reasonable route by simply correcting the rate.
3. Concession of the Union's claim could lead to further problems for the Company in that it could be seen as an encouragment to people to falsify their application forms.
DECISION:
The Court has given careful consideration to the submissions made by the parties. On the evidence before it, the Court has difficulty in accepting that the claimant did mislead management at interview and that the rate of pay offered was based on false information.
In light of subsequent events, it may well have been a mistake to place the claimant on the enhanced rate. There is, however, nothing to suggest that this arose from an administrative error or that the person who made the decision exceeded her authority.
The claimant accepted the post offered on the basis that her rate of pay would be as set out in her contract of employment. In the Court's view, the subsequent decision to reduce the contracted rate was unfair.
The Court is, however, mindful of the potential for a recurrence of the industrial relations problems surrounding this issue, which previously arose with other staff members. Whilst the Court is of the view that the Union's claim has merit, it believes that it could only be conceded on the following basis:-
1. The rate will apply to the claimant on a personal to holder basis only.
2. That no consequential claims by or on behalf of any other member of staff arising directly or indirectly from concession of this claim will be pursued against the Company in any store.
3. That all parties acknowledge the unique circumstances of this case and agree that this determination will have no precedent value and will not be used or quoted by either party for any other industrial relations purpose now or in the future.
Subject to these conditions, the Court allows the Union's appeal and amends the Rights Commissioner Recommendations so as to concede the Union's claim.
Signed on behalf of the Labour Court
Kevin Duffy
12th October, 2001______________________
CO'N/CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.