FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SODEXHO - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Against Rights Commissioner's Recommendation R-045980-Ir-06/Jt
BACKGROUND:
2. The Company operates a three - shift cycle to meet the requirements of its clients. The Claimant began with the Company in April 2005, and his contract at this time was specific to the site he worked on. Payment included a shift premium. The Claimant began a second contract with the Company in December, 2005 at a different site. The contract was termed a "Relief Term Contract". The Claimant was put on the 2nd Shift which carried a 25% shift premium. No allowance was paid to the Claimant. The Company maintain that workers on Relief term Contracts do not receive a shift allowance. The Union claims that other workers on Relief term contracts have received shift premiums. The Claimant is seeking to have the difference of 25% due to him paid for the period from December, 2005 to November, 2006.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 10th August, 2007 the Rights Commissioner issued his recommendation as follows:
"... I cannot ignore the fact that the claimant accepted the position and signed acceptance of it and was advised in relation to the fact that there was no shift premium to be paid. I further note that the respondent operates contracts with various companies for their services. It would appear that contracts are negotiated on the basis of cost and that would include wages and shift premium. Having considered the matter I find that on the balance of probability the case is not well founded and therefore falls."
On the 24th August, 2007 the Union appealed the Rights Commissioner's Recommendation to the Labour Court on in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th April, 2008.
UNION'S ARGUMENTS:
3. 1 The Company have accepted that others who worked 3rd shift recieved the appropriate shift premium despite being on Relief Team contracts. The system used by the Company to determine who gets paid shift allowances is grossly unfair and the Claimant cannot be penalised in this fashion.
2 The Company are cherry picking when and to whom they pay these premiums, depending on how badly they need cover.
3 The core employees are in receipt of premiums and we can not have a situation where others working alongside these core employees are disadvantaged on basic conditions.
COMPANY'S ARGUMENTS:
4. 1 Relief Team employees do not receive a shift allowance, they only receive a rate of pay per hour. The allowance was specific to employees at one of the Company's contract sites who hold permanent posts.
2 The Claimant had three separate posts with the Company. It is the period of the second contract that the Claimant was a Relief worker and was not entitled to shift premiums.
3 In October 2006 the Claimant began a permanent position and was paid a shift premium in line with other permanent employees in his position.
DECISION:
The Union's claim is for the payment of a shift allowance to its member in respect of a period during which he was employed as a relief chef on second shift. The Company maintain that it has never paid relief chefs shift allowance for second shifts.
It appears to the Court that the Union's claim is based on a belief that others were paid in the claimed allowance in similar circumstances to those of the Claimant. However, the Court is not satisfied that the source or quality of the Union's information in that regard could provide a sufficient basis upon which it could recommend concession of the claim.
In the circumstances the Court is of the view that the conclusions of the Rights Commissioner are reasonable and that his recommendation is appropriate in the circumstances.
The appeal is disallowed and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
2nd May, 2008______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.