FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-035733-IR-05-TB.
BACKGROUND:
2. The appeal concerns a worker who commenced employment with the Company in 1991. He worked for the Company in an number of stores and on the 9th May, 2005 he was employed as a section manager on nights at the Company's Artane store. On the 14th May, 2005 the claimant had an accident at work and was on sick leave for a number of weeks. The Union claimed that during this time he was subjected to harassment by Management through numerous phone calls and comments. The Union wrote to Management on the 2nd June, 2006 complaining of Management's behaviour towards the claimant. He returned to work on the 15th June, 2005 and was allocated day duties for a period of six weeks. The Union appealed the decision and following a meeting with Management on the 7th July, 2005 the Company offered the claimant the following options:
The claimant can remain in Tesco Artane performing all the roles of a night section manager receiving the appropriate premium payment with immediate effect
or alternatively he can transfer to Tesco Kilbarrack performing the roles of a section manager on days receiving the appropriate payment with immediate effect.
The Union was unhappy with the outcome, it sought a formal apology from the Company to the claimant and compensation for the stress and anxiety that he suffered. The Union referred the dispute to a Rights Commissioner for investigation. In the meantime the claimant went on job stress related sick leave from October, 2005. The Rights Commissioner issued his Recommendation on the 16th December, 2005 as follows:
"I believe that the options available to the claimant are reasonable and he should now make a decision as to which of these options he wishes to exercise.
However, based on the evidence at the hearing I believe that the Union has grounds for concern in relation to the manner in which the claimant was treated in his positions in the Artane store. I recommend that the claimant should exercise whichever option he prefers in relation to the offer made by the Company and I also recommend that the company should examine closely the position in the Artane store with a view to ensuring that there is no recurrence of the matters of which the Union complains."
The Union appealed the recommendation to the Labour Court on the 13th January, 2006. The claimant returned to work as night manager of the Artane store on the 17th February, 2006. A Court hearing was held on the 5th April, 2006.
UNION'S ARGUMENTS:
3. 1. The Company's decision to move the claimant from nights to days was contrary to the National Agreement on the introduction of night shifts, 2003. This is a specific contract of employment for night managers. The claimant was a night shift section manager. Under no circumstances did he accept an offer which allowed him to be moved from nights to days at the Company's discretion.
2. The treatment of the claimant by Management amounted to bullying and showed no compassion or any sort of duty of care towards him. The Company failed to respond to the Union's letter of complaint, ( 2nd June, 2005), to the store manager Artane.
3. The Union is seeking a formal apology from the Company to the claimant and also compensation for the loss of earnings accumulated by him during his absence. The Union is also seeking €5,000 by way of compensation for the stress caused to the claimant.
COMPANY'S ARGUMENTS:
4. 1. The movement of the claimant from nights to days was in line with the section manager contract.
2. The Company made two options available to the claimant and he chose to remain at the Artane Store. The Company put in place a process to assist the claimant return to work. The Company had a meeting with the store manager to discuss the issues raised at the Rights Commissioner's hearing and to inform him that repeat behaviour would not be acceptable. New communication and hand over processes between day management and night management have been put in place in the Artane store. The Company adhered to the agreed company/union grievance procedures at all stages and came to a fair and impartial decision.
DECISION:
The Union appealed the Right’s Commissioners recommendation on the basis that the recommendation did not provide for an apology from the Company and for compensation for loss of earning for the stress caused.
The Court has carefully examined the events surrounding this case and taken consideration of the oral and written submissions of the parties. The Court notes that following the formal lodging of a Union complaint regarding the treatment of the appellant, the Company agreed to investigate the matter and to pay him special paid leave whilst the matter was under investigation. An investigative meeting was held on 7th July 2005 following which the Company produced a report into their investigation. Having considered the findings of the investigation, the Company (i) concludedinter alia, that the appellant should be compensated for his loss of earnings during the period of his absence due to an occupational injury; (ii) offered two alternative job options to the appellant and (iii) expressed their regret for any distress caused to the appellant.
The Union indicated to the Court that the remaining outstanding issue following this process was the question of the uncertainty concerning the appellant’s position as a “Night” shift manager. The Union expressed its concern over the Company’s interpretation of the flexibility/mobility requirement.
Subsequent to the lodging of the claim at the Rights Commissioner, the appellant took stress related leave due to issues, which he alleged took place. These issues were not formally brought to the Company’s attention and consequently were not the subject of an investigation.
Having considered the matter the Court accepts that the appellant had a right to believe that when he was appointed as Night Shift Section Manager at the Artane store that he would continue in that role unless, he opted to relinquish the role; the Stores requirement for night shift changed or his employment with the Company came to an end. The Court accepts Management’s right to transfer him to different departments within the store or to another store as per his contract of employment. Furthermore, the Court accepts Management’s right to transfer him from days to nights as operational needs dictate, however, this right must be viewed within the context of his substantive position as a Night Shift Section Manager. Therefore, the Court is of the view that while he must comply with his requirement to fulfil operational needs, this must be viewed as a temporary need and not a substantial change in his employment terms. The Court accepts that the requirement for the appellant to manage the Cleaning Action Plan for six weeks can be deemed to fall within this flexibility requirement. However, he retained his right to return to his substantive post (as Night Shift Section Manager) at the expiry of the Action Plan.
With this proviso, the Court upholds the Right’s Commissioner’s recommendation and notes that since it was issued, the appellant selected one of the options offered by the Company and has since returned to work in the Artane Store as a Night Shift Section Manager. The Court notes that the Company has taken steps to address the difficulties at the Artane Store identified by the Right’s Commissioner.
The Union referred to an agreed Return to Work Plan for the appellant, which continues to cause difficulties – the Company indicated their willingness to address the concerns raised.
To address the Union’s claim for loss of earnings and compensation, the Court has examined the loss sustained for the period in question i.e. from 12th October 2005 to 17th February 2006, a period following the lodging of the claim with the Right’s Commissioner’s and which straddled either side of the hearing.
The Court upholds the Rights’ Commissioners finding that the appellant had grounds for concern in relation to the manner in which he was treated in his position during the period of his absence due to an occupational injury. The Court also concludes that he suffered needless uncertainty regarding his position as Night Shift Section Manager and recommends that in addition to the monies paid by the Company both before and after this hearing, the appellant should be paid a sum of €3000 in full and final settlement of all claims before the Court.
The Right’s Commissioner’s recommendation is varied accordingly. The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st April, 2006______________________
todDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.