FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 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 McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners Recommendation R-032939-IR-05-DI.
BACKGROUND:
2. The worker concerned commenced employment with the Company as a Sales Assistant in August, 2000. In April, 2002 he was promoted to the position of Assistant Duty Manager. Following his failure to successfully complete the probationary period attached to this role he was redeployed as a Sales Assistant retaining his higher management rate of pay.
In March, 2005 the Company sought to transfer the worker to the Service area. The worker refused to agree to the transfer and in accordance with the terms of the collective agreement the Company appealed the case to the Superquinn/Mandate Blueprint sub-committee. The sub-committee recommended that as an interim measure the worker"moves from his current position on the fish counter by mutual agreement to a role within the store (excluding checkouts)..."
The worker initially accepted the recommendation but later rejected it when he was informed by management that he would be required to carry out bag packing duties. The Company then instructed the worker to work on the shop floor under protest in accordance with the collective agreements. When he refused he was suspended on full pay.
The issue was referred to a Rights Commissioner for investigation and recommendation. His recommendation was as follows:-
{"... I recommend that the worker comply with the instruction to transfer to the service area.
.....I recommend that the parties seek clarification from the Blueprint Committee as to exactly what duties they intended to exclude when they recommended that he move to a role within the store "excluding checkouts"}.
The worker was named in the Rights Commissioner's recommendation.
TheUnion appealed the recommendation to the Labour Court on the 3rd August, 2005, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 12th August, 2005.
UNION'S ARGUMENTS:
3. 1.There is an absolute necessity on both the Company and the Union to abide by collective agreements freely entered into and voted upon by our members.
2. The worker initially accepted the Blueprint Committee recommendation, he rejected it when management required him to do bag packing.
3. Nowhere in any of our collective agreements with the Company does the Disputes Procedure allow for suspension pending a third party decision.
COMPANY'S ARGUMENTS:
4. 1. The worker has no grounds for refusing to transfer to the service area and to carry out the full range of duties there.
2. The worker is employed as a Sales Assistant and it is a condition of his employment that he must be available to work in all areas of the store.
3. The worker's refusal to work in the service area is contrary to the spirit of Section 4.7 of the Blueprint Agreement.
DECISION:
The Court has considered the submissions of the parties and the subsequent correspondence arising from the hearing.
It is the view of the Court that referral of this issue to the Blueprint Committee was mistaken in the first instance, as this Committee's purpose lay in the implementation and transition of the restructuring phase. The event in question arose sometime after this and should have been dealt with in the normal way through the standard Grievance/ Disciplinary Procedures.
From the hearing and subsequent correspondence it would appear that neither party accepted the decision in the Rights Commissioner's recommendation.
It is the opinion of the Court that the claimant was inappropriately suspended from duty in breach of normal disciplinary procedure and that he should receive €500 to alleviate any personal distress whilst out on sick leave. He should continue to perform his full range of duties as undertaken since his resumption of work.
Signed on behalf of the Labour Court
Raymond McGee
24th August, 2005______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.