FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SUPERQUINN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioners Recommendation IR4157/01/GF
BACKGROUND:
2. The worker commenced employment with the Company in 1987. In 1989 he moved to a position on the permanent night crew whose rate of pay was 1.25 times the normal general sales assistant rate. The Union's case is that towards the end of 1993 the Company decided to disband the night crew. (The Company claims that it was 1990). The worker was told that he was being placed back on day duties with the loss of his 25% premium. He was given no choice in the matter. In 1999, the worker moved to the position of baconhand with a different rate of pay. He discovered at this time that the other 4 workers on the night crew had retained the 25% premium. In 2001, the worker made a claim for the restoration of his 25% premium for the years 1993 - 1999. The Company refused to pay any retrospection.
The worker referred his case to the Rights Commissioner and his recommendation is as follows:-
"The Union has satisfied me that the claimant was unfairly treated, but I am reluctant to award the type of compensation sought. Therefore, I have decided the claimant be paid the sum of €5,000 in full and final settlement of the matter."
Both sides appealed the recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969, the Company on the 12th of March, 2002, and the Union on the 20th of March. A Labour Court hearing took place on the 26th of June, 2002.
UNION'S ARGUMENTS:
3. 1. At the time that the night crew was disbanded, management reached individual agreements with the other members of the night crew but not the worker concerned. The Union believes that the other 4 workers retained the 25% premium.
2. The Company's assertion that the workers retained the premium without its knowledge is not sustainable. No other workers in Superquinn are in receipt of a similar type premium.
3. The worker has suffered a considerable financial disadvantage because of the Company's actions.
COMPANY'S ARGUMENTS:
3. 1. Four of the 5 members of the night shift had their premium discontinued in 1990, including the worker concerned. The one worker who did retain the premium did so by way of error.
2. If the claim were conceded there would be knock-on claims from the other 3 workers.
DECISION:
In the absence of any evidence to the contrary, the Court accepts that the claimant was treated differently than four of his colleagues who were similarly transferred to day duties. However, the Court agrees with the Rights Commissioner that a sum short of the full amount claimed should be paid in compensation and does not see any basis on which it should interfere with the recommendation of the Rights Commissioner.
The Court affirms the Recommendation of the Rights Commissioner and disallows the appeal and the cross appeal.
Signed on behalf of the Labour Court
Kevin Duffy
30th September, 2002______________________
CON/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.