FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WILTON SHOPPING CENTRE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation R-030273-IR-04-DI
BACKGROUND:
2. The Claimant is employed as a Security Officer in the Wilton Shopping Centre. Prior to 2002, the Claimant worked late on Thursday or Friday nights as late night shopping was in place on these nights. In 2002, one of the anchor tenants decided to extend late night shopping to include Wednesday nights, and as there was a requirement for an additional Security Officer, the Claimant agreed to change to working Wednesday nights. In 2004, a new Tesco store opened and as they had their own shopping entrance and would not require use of the main entrance, the requirement for additional security on Wednesday nights was no longer necessary. The Claimant was offered work on Thursday or Friday nights but declined the offer. In January, 2005, the need arose again for a Security Officer to work on Wednesday nights and the Claimant was offered the hours but declined.
- The dispute before the Court concerns a claim by the Union on behalf of its member for loss of overtime earnings. The loss suffered would be €65 per week. The Company rejects the claim on the basis that it acted in a fair and reasonable manner in their dealing with the Claimant and attempted to provide on-going overtime work for the Claimant.
- The matter was referred to a Rights Commissioner for investigation and Recommendation. His findings and Recommendation issued on the 7th April, 2005, as follows:
“I find that the Respondent Company has acted reasonably in offering the worker the option to revert back to working late on Thursday/Friday nights. I therefore find against the worker's complaint under the Industrial Relations Acts, 1969 to 2004.”
- The matter was referred to a Rights Commissioner for investigation and Recommendation. His findings and Recommendation issued on the 7th April, 2005, as follows:
- The worker was named in the Rights Commissioner’s Recommendation.
On the 12th May, 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, on the basis that the Commissioner failed to understand or recognise the validity of the case presented in respect of the loss suffered by its member.
A Labour Court hearing took place on the 1st February, 2006.
- The worker was named in the Rights Commissioner’s Recommendation.
3. 1. The Claimant's reluctance to revert to working on Thursday or Friday nights was as a result of domestic arrangements. When he changed to working Wednesday nights, he committed himself to the job of minding his young grandchildren while his son and daughter-in-law were working shifts.
2. The Claimant has worked for the Company for twenty two years always performing the tasks given to him without question. The core function of his job is that of Security Officer, however, he had performed many tasks including cleaning, painting and general maintenance work within the Centre. His rate of pay was under €11.50 per hour, which highlights the effect of the loss suffered by the Claimant and is something the Union believes the Rights Commissioner failed to recognise.
3. The Union believes that the Company could have re-jigged their rostering arrangements to accommodate its member, but this did not happen, bearing in mind that he is one of the most senior members of staff. He has always co-operated and did so again when he changed from his original nights of work to Wednesday nights. He then made a commitment, something he could not easily get out from, but as a consequence he fell foul of the Company and could not extend to them the normal co-operation that he had given through the years. The Claimant has since resumed working on Wednesdays nights.
COMPANY'S ARGUMENTS: 4. 1. The reason the Claimant has a loss of overtime earnings is his refusal to work Thursday or Friday evenings and revert to his old roster in the absence of available work on Wednesday nights. This change was dictated by the needs of the business to cater for one of its anchor tenants.
2. The Company has honoured all national pay agreements. One of the key principles underpinning these agreements is an acceptance that the rapid pace of change in the business environment demands committment to full co-operation with normal on-going change and the need to maintain and improve competitiveness and increase productivity and employment. The Company considers the change as normal on-going change.
3. Concession of the claim would have repercussive effects. The Company acted reasonably in offering the Claimant the option to revert to working late Thursday/Friday nights. Since January, 2005, the Company has offered Wednesday night working when it became available, but this was refused. At no time did the Claimant inform the Company of any domestic arrangement preventing him from being available on Thursday/Friday nights.
DECISION:
In investigating the Union’s appeal of the Rights Commissioner’s Recommendation, the Court has considered the views of the parties expressed in their oral and written submissions.
Having examined the events which gave rise to the claim for loss of overtime earnings the Court is satisfied that in the circumstances prevailing, the employer acted in a reasonable and fair manner to provide a continuation of overtime earnings to the Appellant. The Court is also satisfied that the Appellant did not make sufficient efforts to mitigate that loss.
Consequently, the Court does not find in favour of the Appellant’s appeal and accordingly, upholds the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th February, 2006______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.