FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WITH FLAIR HOLDINGS LIMITED - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR9222/02/LM
BACKGROUND:
2. The worker commenced employment with the Company in March, 2000, when the it was successful in getting the contract for Fairyhouse Racecourse. The Union claims that the worker was employed as a waiter at all of the race meetings held in Fairyhouse from the commencement of his employment up until the 8th May, 2002 when his employment was terminated. He is seeking compensation for the loss of earnings.
The Union states that the Company (formally known as "With Flair Catering Services
Ltd") took over the catering contract from Egan Catering Ltd under the European
Communities (Safeguarding of Employees' Rights on Transfer of Undertaking)
Regulations, 1980 (S.I. 306 of 1980). The Union claims that the Company subsequently engaged a subcontractor Professional Catering Services (PCS) to manage the business at Fairyhouse. The worker, the Union claims, has not been booked for racemeetings since 8th May, 2002.
The Company rejected the Union's claim. It states that the worker was not employed by them and that his employer at that time was Professional Catering Services.
The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 6th December, 2002, the Rights Commissioner issued her Recommendation as follows:-
- " I recommend the re-instatement of the claimant's position, and the payment of €2,000 to him, which includes loss of €1,380 in respect of 12 meetings and 12 set ups he was denied access to".
The Company did not attend the Rights Commissioner's hearing.
The Company appealed the Recommendation on the 19th December, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 12th March, 2003.
- COMPANY'S ARGUMENTS :
3. Any claim for loss of earnings by the employee should be served against Professional Catering Services and not with this Company.
4. In January, 2003, Professional Catering Services pulled out of the contracts at Naas and Fairyhouse Racecourses. As a consequence, the Company rehired all its former staff, including the claimant.
4. 1. The worker was employed at all racemeetings held in Fairyhouse Racecourse
from the commencement of his employment up to the 8th May, 2002, when his employment was terminated.2. The Company took over the catering contract from Egan Catering Ltd under the European Communities (Safeguarding of Employees' Rights on Transfer of Undertaking) Regulations, 1980 (S.I.306 of 1980).
3. The worker's daily rate of pay was €60.31. When he worked on Sundays and Public Holidays he was paid at double time.
4. The worker is adamant that his employer was at all times "With Flair Holdings Ltd" and not Professional Catering Services as claimed by management.
DECISION:
Having considered the submissions of the parties the Court is satisfied that With Flair Holdings were not employing staff in the same category as the claimant at the meetings in question. This information was not before the Rights Commissioner.
In the circumstances, the company could have no liability to the claimant in respect of those meetings.
Accordingly, the appeal is allowed and the recommendation of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
1st May, 2003______________________
LW/LWDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.