FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SUPERQUINN LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MANDATE DIVISION : Chairman: Mr Flood Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioners Recommendation No. Ir8098/02/GF.
BACKGROUND:
2. The appeal concerns a worker who commenced employment in 1986 as a sales assistant in the Swords branch. In 1994 she was appointed to the post of Checkout Number 2 Supervisor. For a number of years the worker experienced problems with her immediate supervisor which could not be resolved and she accepted a move to the Company's training centre in Finglas. In May, 2001 the worker left on maternity leave and has been on certified sick leave since. During her absence the Company support offices underwent a period of change and the Finglas training centre was transferred to Lucan. All staff were offered the option of suitable alternative employment or accepting a €634.87 relocation payment. Most staff transferred but the transfer to Lucan was rejected by the worker as it was unsuitable. In December, 2001 the Company invited applications for a voluntary redundancy package. The worker submitted her application but it was rejected. Following local negotiations the Company offered as "suitable alternative employment" three locations, but these were rejected by the worker, two on the basis of distance from her home, and the Swords branch for reasons already outlined.
The dispute was referred to a Rights Commissioner for investigation. On the 2nd September, 2002 the Rights Commissioner issued his recommendation as follows;
"To date the efforts made have not been to the claimant's satisfaction and she is claiming access to a redundancy package. I am not convinced by her claim that she has lost faith in her employer and the relationship between the employer and employee has broken down. I recommend that the previous offer of alternative employment be reviewed and updated and I urge the parties to return to the task of restoring the relationship and returning the claimant to gainful employment".
On the 30th September, 2002 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 4th December, 2002.
UNION'S ARGUMENTS:
3. 1. The Company was clearly aware that the worker could not transfer to Lucan. However it made no provision for workers who were not successful in their redundancy applications and who did not wish to transfer to Lucan.
2. The Company's final offer of suitable alternative employment was not acceptable.
3. The situation is one of compulsory redundancy and the terms, made available to other staff, should be made available to the claimant.
4. There is no certainty that any of the posts being offered by the Company to the claimant will exist in six months time because of Company policy with reference to posts of responsibility and chargehand.
COMPANY'S ARGUMENTS:
4. 1. The role previously occupied by the worker in training is still open to her in Lucan.
2. All suitable vacant posts of responsibility were offered to the worker.
3. All the worker's colleagues in the Finglas training department relocated to Lucan and accepted the sum of € 634.87.
4. The Company cannot offer a redundancy package to the worker due to the fact that a full time training position is there for her or the opportunity of suitable alternative employment including the offer of posts of responsibility at Finglas.
DECISION:
The Court considered the written and oral submissions made by the parties, and the background history of the case.
On the basis that there were no issues in relation to the claimant's performance in her job and that it appears that a number of vacancies have arisen in recent times the Court recommends as follows:-
The claimant to be offered each post of responsibility that becomes available until an acceptable one arises. If there is no resolution to the dispute by 1st July, 2003 the matter can be referred back to the Court.
Signed on behalf of the Labour Court
Finbarr Flood
12th December, 2002.______________________
TOD.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.