FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED - AND - A WORKER (REPRESENTED BY MANDATE TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation R-042898-IR-06/JT
BACKGROUND:
2. The dispute concerns the Claimant who was employed by Tesco as a General Sales Assistant from June 2004. The Claimant is seeking to be paid an additional 7.5% adjustment per week in her salary for the period of June 2004 - March 2006 for supervisory system checker duties carried out by her as a General Sales Assistant. Management contends that the Claimant is not entitled to the systems checker adjustment as the systems checker role is not designated as a post of responsibility. Following the Company/Union Agreements of 2000 and 2003 an agreed list of staff in the systems checking area are in receipt of an adjustment equivalent to 7.5%, which they hold on an individual red circled basis. The Claimant is not on the agreed list. The matter was referred to a Rights Commissioner for investigation and Recommendation. On the 12th December, 2006, the Rights Commissioner issued his Recommendation as follows:
- “Having considered the submission and arguments of both parties it is clear there was a red circled list drawn up which the claimant was not on that list for whatever reason. I therefore accept the respondents argument that only people of the red circled list were entitled to this arrangement over the 7.5% payment. The claim fails.
One must express some concern that when the claimant pursued this claim she was taken off duties on system checking and works as a cashier with various hours of work. Where as I acknowledge managements rights to manage I also recommend the respondent and the claimants representative discuss this matter with a view to introducing some level of stability in the hours that she worked given that she has a previously good record with the respondents company”.
On the 19th January, 2007 the Claimant 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 29th May, 2007.
UNION'S ARGUMENTS:
3.1 The Union argues that as the Company never contested, either at the stages of the Grievance Procedure or at the Rights Commissioner hearing, the duties, roles and responsibilities of the Claimant for all the relevant periods were and are indisputably that of a Systems Checker.
2. The Union contends that it is evident that roles associated with the position are regarded as higher than that of a General Sales Assistant to date and irrespective of whether a new store is opened or not, the roles operationally exist.
3. The Company continues to benefit twofold from their actions with the Claimant. It benefits from the Claimant's excellent performance in this role, a fact that has been recognised by the Company in all related representations.
4.The Union is requesting the Company to formally recognise re-instatement of the Claimant to the Store's position of Systems Checker and the re-introduction of her previously rostered hours of 8a.m. to 5p.m. five days over seven 39 hours per week and recommend that the Company pay the Claimant the proper rate of pay for the periods she worked and should have been working (and was available to work) and currently works as the Store System Checker.COMPANY'S ARGUMENTS:
4.1 The Company and the Union reached an agreement in 2000, namely, the Systems Checker Agreement. The Agreement referred to the individuals at the time who were recognised as the principal person working in the area receiving an adjustment of 7.5% of basic pay. An agreed list of these named individuals was drawn up. In 2003 a revised list was drawn up between the Company and the Union. It was agreed by both parties that the adjustment applied to the named individuals on an individual red circled basis and not to the position.
2. It was agreed by all parties that from October 2003 staff employed in the systems checking area were employed as general assistants and did not hold positions of responsibilities. Therefore they were not in receipt of the 7.5% pay adjustment which applied to the named individuals pre October 2003. The Claimant joined the Company in June 2004.
3. The Claimant reported to the Stock Control Manager and the Trading Manager who were accountable for the systems checking area. Her roster was completed by the Personnel Manager.
4. To award the Claimant the systems checker adjustment from June 2004 - March 2006 would open the Company up to others pursuing this claim. The systems checker role was never designated as a post of responsibility.
5. The Claimant is a General Sales Assistant since the commencement of her employment in 2004. She has worked in numerous departments within the Store. She is currently back working in the systems area of the Store and is on the Company's Management Options Programme to become a Section Manager in Tesco.
DECISION:
The case before the Court concerns the Union’s appeal of the Rights Commissioner's Recommendation which found against the worker’s claim that she was not appropriately recompensed for performing the roles and responsibilities of a Systems Checker. The Union claimed that she was carrying out the Systems Checker role which was recognised as a higher grade than the General Sales Assistant grade for which a 7.5% differential is now paid.
The Company disputed her entitlement to the differential, citing collective agreements made with the Union in 2000, 2003 and 2006 which resulted in named individuals in each store assigned as the principal person to carry out the systems checking and related duties roles. It stated that the worker does not carry out the duties of a Principal Systems Checker was not named as one of the red circled persons and consequently was not entitled to the differential.
Having considered the views of the parties expressed in their oral and written submissions, it is clear that the worker is not covered by the collective agreements mentioned above and therefore, is not entitled to the payment of the differential sought.
However, the Court is of the view that some ambiguity exists over whether or not the designation of the post of responsibility payment applies to the systems checker duties has been resolved by the 2006 agreement and therefore the Court is of the view that this issue needs to be resolved between the parties.
In the circumstances, the Court upholds the Rights Commissioner’s Recommendation and the Union’s appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
11th June, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.