FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MARKEN CATERING COMPANY - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's recommendation.
BACKGROUND:
2. The worker is employed by the Company as a senior bar person. The worker works for various contract catering companies. On the 6th of May, 2001, the worker had a prior engagement to work with another contract caterer which she had to honour and was unable to work for Marken Catering Company. The Union argues that the worker was denied an opportunity of employment by the Company at Gowran Race Course on 9 separate occasions, the Company rejected the claim. The dispute concerns the Union's claim on behalf of the worker for 10 days pay for loss of earnings. The matter was referred to the Rights Commissioner for investigation and recommendation. The Rights Commissioner's recommendation is as follows:-
"This case is due directly to circumstances beyond the control of either the claimant nor the respondent. It is due to the impact of the foot and mouth outbreak on Irish Race meetings. I am satisfied that considerable ambiguity existed regarding the return to normality. The problem which occurred on the 6th of May, when two meetings clashed left the parties in an awkward position and in my opinion should be left behind. The claimant has had a "favoured worker" status with the employer for a number of years and I recommend it should be retained. I am not prepared to recommend compensation for the disputed days."
On the 28th of November, 2001, the Union appealed the Rights Commissioner's recommendation to the Labour Court under Section 13(9) of the Industrial Relations Act, 1969. The Court investigated the complaint on the 29th of January, 2002.
UNION'S ARGUMENTS:
3. 1. It is accepted practice by all contractor caterers that if a member gives a commitment to work for them, then that commitment is honoured.
2. The employer is trying to change a long established custom and practice in the industry and is acting in a punitive fashion by denying the worker employment.
COMPANY'S ARGUMENTS:
4. 1. Race meetings are fixed a year in advance and the worker knew the dates she was expected to work.
2. The worker decided it was more advantageous to her to work for someone else, despite her agreement to work for the Company.
3. The employer has abided by the findings and recommendation of the Rights Commissioner and the worker has been re-employed.
DECISION:
The Court notes that since the Rights Commissioner issued his recommendation, the claimant has resumed working for the employer.
In all the circumstances of this case, the Court regards the Recommendation of the Rights Commissioner as reasonable and appropriate. Accordingly, the Recommendation is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
7th February, 2002______________________
HMCD/CCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.