FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DAWN DAIRIES (REPRESENTED BY ARRA-HRD) - 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 Commissioner's Decision R-047732-Ir-06/JT
BACKGROUND:
2. The worker has been employed as a Driver/Sales Person with the Company for approximately six years. His wages are made up of an hourly rate of €9.64 and the remainder consists of commission earnings, expenses, a meal allowance and up to August, 2006, a regular payment of €50 for approximately three hours worked on Sundays. The Union's case is that the worker has been reduced to working one Sunday in four and now only receives whatever commission he receives on the day which is currently less than €5. The Company's case is that a new commission structure was introduced in July, 2006, which gave a significantly greater incentive for Drivers to enhance their earnings, even including the Sunday payment.
The case was referred to a Rights Commissioner and his recommendation was as follows:
"Having considered the submissions made by both parties I examined the figures submitted by the respondent and I am not convinced that the claimant is not at a loss in the long term. I recommend that the claimant be paid retrospectively for time worked to week 31 of 2006. I recommend that the claimant work one Sunday in four and co-operate with the operation of the hand held computer."
The Company appealed the Rights Commissioner's recommendation on the 6th of September, 2007, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 23rd November, 2007, in Westport.
UNION'S ARGUMENTS:
3. 1. The Company gave no justification for the withdrawal of the Sunday payment which the worker had been in receipt of for the previous four years. The conditions which require Sunday working - as per the Company/Union agreement - remain.
2. At the Rights Commissioner's hearing the Company made a proposal that the Sunday payment of €50 be re-introduced from an agreed date up to 1st Sunday in September, 2007, which obviously indicates that the payment should not have been withdrawn without agreement.
3. Some of the worker's colleagues still work Sundays and receive the €50 payment.
COMPANY'S ARGUMENTS:
4. 1. The worker is demonstrably better off under the new system than under the old one. He earned an average increase of €84 per week for weeks 2 -30 of years 2006/2007. To continue the €50 payment being claimed would result in a further payment of €3,100.
2. The worker continues to get paid extra if, like his colleagues, he does Sunday work.
DECISION:
The Company made an appeal of the Rights Commissioner’s recommendation before the Court on the grounds that the worker’s earnings for the period from week 31 of 2006 to week 40 of 2007 indicate that he earned substantially more than he would have earned under the old system and therefore it was justified in removing his Sunday payment of €50.00.
One aspect of the Rights Commissioner’s recommendation provided for the claimant to work one Sunday in four and co-operate with hand held computers, this aspect of the recommendation was not appealed and consequently remains unaltered.
Having considered the submissions of both parties, the Court is of the view that in all the circumstances of this case, the Sunday payment should be reinstated for the period from week 31 of 2006 up to week 40 of 2007. Therefore, the Court concurs with the Rights Commissioner’s recommendation and rejects the Company’s appeal.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th December, 2007______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.