FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MONAGHAN MUSHROOMS LTD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal of Rights Commissioners Recommendation IR21737/04/JH
BACKGROUND:
2. The dispute before the Court concerns a claim by the Union on behalf of it's member, employed by the Company as a General Operative, in relation to two issues. The Claimant commenced employment with the Company in December 2003. In 2003, discussions had commenced between the Company and the Union to address the on-going competitive environment of the industry. This involved agreement on a new payment system, which would result in a single rate of pay for all hours worked, replacing the current basic hourly rate (Composite rate of pay), plus elimination of overtime premia, shift allowances, Sunday premia and Saturday allowance payment. No agreement had been reached on the proposals by December 2003. The Union contends that the Composite rate of pay was applied to the Claimant and this was not in accordance with the agreed rates of pay which were being applied to other employees working in the same department and carrying out similar work. The Company rejects the claim and contends that all new employees from December 2003, were employed on the new rates of pay.
- It is the Union's contention that it's member was suspended following a meeting with her manager in September, 2004. It's member, the Claimant, requested Union representation at the meeting and was refused. A heated exchange took place between the two parties and the Claimant understood that she was suspended when her manager told her to "leave the work area and go home". The Company rejects the claim and contends that the Claimant was not suspended and that this was made clear to her before she left the workplace.
- The matter was referred to a Rights Commissioner for investigation and recommendation. Her findings and recommendation issued on the 8th February, 2005, as follows:
She was satisfied that no actual suspension of the Claimant took place. She was, however, satisfied that a heated exchange took place between the Manager and the Claimant. This is not good practice on the part of either the Manager or the Claimant in terms of attempting to resolve disputes between them. She concluded that in the interests of all concerned going forward she recommended that two days pay should be restored to the Claimant as the parties contributed equally to the breakdown of communications.
She was satisfied that the employer did impose new rates of pay with effect of 2003 on all new entrants. In this regard the Claimant was no different to other employees affected by this decision and the Rights Commissioner could see no reason to issue a recommendation stating that a different rate of pay should apply in the Claimants case.
“For the reasons set out in the foregoing I recommend that the Claimant have restored to her, two of the four days pay deducted from her in September 2004. I do not recommend concession of the claim for enhanced pay submitted by the Claimant.”
The Claimant was named in the Rights Commissioner’s Recommendation.
On the 14th April, 2005, the Union appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 22nd November, 2005.
3. 1. On commencing her employment as a direct employee of the Company, her rate of pay should have been in line with existing practice and as such was the Claimants understanding. No agreement was in place for such action taken by the Company.
2. The Claimant is not contesting the meeting with her manager as requested. She made a reasonable request to be accompanied at this meeting. The Company's unacceptable action in suspending the Claimant without pay has resulted in financial loss to her. She should be afforded respect and dignity in her workplace.
COMPANY'S ARGUMENTS:
4. 1. On joining the Company the Claimant accepted the new Terms and Conditions of Employment and she was aware of the ongoing negotiations to introduce the new Terms and Conditions of Employment to all Company Employees.
2. The Claimant was not suspended and that was made clear to her before she left the workplace. The Claimant refused to accept the Company's position and remained off work. In these circumstances the Company does not believe that compensation is appropriate.
DECISION:
The Court has considered the worker's appeal of the Rights Commissioner's recommendation and concurs with her findings and conclusion on the issue of the alleged suspension. Accordingly, the Court upholds the decision that two days pay should be restored to the claimant.
On the second issue referred to the Rights Commissioner, the Court is of the view that the worker was recruited during the period when the issue of a new composite rate of pay was under negotiations with the Union and was prior to implementation of the new work practices. Therefore, at that point in time the Company position was not clear, due to this confusion and the lack of a written contract of employment, the Court recommends that the worker should be paid the sum of €250 in full and final settlement of this claim.
The Rights Commissioner's Recommendation is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th December 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.