FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LADBROKE IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioners Recommendation IR20906/04/TB.
BACKGROUND:
2. The appeal concerns a worker who commenced employment with the Company in 1999 in the position of cashier. She was promoted to the position of Deputy Manager in the Company's Raheny premises in 2002. The issue in dispute concerns the rostering arrangement for the claimant during the summer months when evening racing takes place and the Company's premises remain open until late in the evening. The claimant worked two evenings per week and every second Sunday. The Union claimed that in the summer of 2004 the Company sought to increase the number of evenings that she worked and changed her roster to deprive her of overtime. The Company's action was unacceptable to the Union. The issue was referred to a Rights Commissioner for investigation. On the 19th January, 2005 the Rights Commissioner issued his recommendation as follows
"The claimant's contract requires her to work evenings but is not specific as to how many evenings are required.
On the basis of the information submitted it appears that the claimant worked three evenings in seven of the twenty weeks evening racing in 2004. I recommend that this increase to three evenings in ten of the twenty weeks evening racing in 2005.
I also recommend that the company treat the claimant fairly in the way which she is rostered regarding overtime".
On the 23rd February, 2005 the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 3rd June, 2005
COMPANY'S ARGUMENTS:
3. 1. Since the introduction of evening racing in 1999 the number of evenings when evening racing takes place has steadily increased. The claimant's contract (" N contract") provides for evening working and given the changes in the industry and given that other deputy managers do so, it is reasonable to expect the claimant to work three evenings per week. She is not required to work in excess of her 37.5 hour per week contract.
2. The Company does not accept that Management entered any agreement with the claimant that she would work only two evenings per week.
3. The Company has been flexible with the worker in the past in relation to her hours and facilitated her with less evening work which was undertaken by workers from other branches and her supervisor in order to give her more time off.
4. Implementation of the Rights Commissioner's recommendation would mean that other similarly contracted employees as the claimant would seek to re-negotiate their contracts of employment and only work selective evenings /hours at significant cost to the Company.
UNION'S ARGUMENTS;
4. 1. Since the commencement of her employment the claimant has always worked two evenings per week on an overtime basis plus every second Sunday. On the completion of her training as Deputy Manager the claimant was assured by Management that these hours would not change.
2. Since the summer of 2004 the claimant has worked three evenings per week under protest, and under the threat of disciplinary action by the Company if she did not agree. She has not received any overtime payments as a result of the change in her roster. She has suffered a significant loss of earnings, as prior to 2004 she had always covered the two evenings per week and every second Sunday on an overtime basis during the summer period. She is seeking compensation for this loss in the amount of €3,956.00.
3. The Union is seeking that the worker's established hours covering the summer periods on an overtime basis be re-instated and that she be paid overtime payments for the three evenings per week worked.
DECISION:
It is clear that the claimant in this case is employed under an "N contract" the terms of which were negotiated between the Union and the Company. The Court does not interpret the Rights Commissioner's recommendation as affecting the validity of the contract or the agreement upon which it is based. Rather, the Court understands the Rights Commissioner as having recommended what he regarded as a reasonable number of occasions during the year on which the claimant could be expected to work on 3 evenings in the same week.
On that basis the Court regards the recommendation of the Rights Commissioner as reasonable. Accordingly the recommendation is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
28th June, 2005______________________
todChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.