FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal Of A Rights Commissioner's Recommendation R-052574-Ir-07/Jw
BACKGROUND:
2. This dispute concerned a claim that the claimant should be included in the terms of the 2006 Management Structures Agreement, which saw an agreed list, compiled by the Company and Union, contain the names of Chargehands in receipt of a 7.5% allowance. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 29th May, 2008 the Rights Commissioner issued the following Recommendation:-
- “Having considered both written and oral submissions from both parties I find as follows:
The claimant asked to step down as a charge-hand in the cash office in the Lucan store, opting to move to a part-time general assistant role. The person who replaced the claimant as charge-hand in the cash office opted for voluntary redundancy in 2007. The company made the position of charge-hand redundant in line with the management structures agreement, 2006 and the Section Manager and the Personnel Manager took responsibility for the cash office.
It was argued that the claimant was carrying out the role of a charge-hand on the basis that she filled out logbook details. The company have copied to the Commissioner and the Union a list of general assistants who fill out logbook records as part of their jobs. It was also argued that ten personnel from the Clearwater store were in a similar position to the claimant and they were treated differently.
My understanding is that seven of the personnel were charge-hands in the Clearwater store and were entitled to be included in the agreement. Two of the personnel held charge-hand positions in the Janelle store when it closed down and were entitled to be included. One individual was a head office manager who was transferred to Clearwater when it opened; he was included as he was red-circled from his previous position in Head Office.
Section B, Scope 15 of the management union structures agreement negotiated in 2006 does not apply to the claimant. Tesco Lucan is not a replacement store and the position of charge-hand was made redundant in 2007, with the responsibility for the cash office taken over by management.
I recommend in favour of the company as I find that the claimant does not fit the agreed criteria of the management union structures agreement 2006”.
The Claimant was named in the Rights Commissioner's Recommendation. On the 19th June, 2008, 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 27th August, 2008, the earliest date suitable to the parties.- “Having considered both written and oral submissions from both parties I find as follows:
UNION'S ARGUMENTS
3. 1. The claimant has been a dedicated, flexible and hard-working employee for over 20 years.
2. Tesco cannot expect the claimant to undertake the duties and responsibilities of a Chargehand yet deny her access to an agreement that affects Chargehands.Tesco has not applied the agreement in a consistent manner.
3.It is the claimant, not the Section Manager and Personnel Manager, who has responsibility for the running of the cash office.
EMPLOYER'S ARGUMENTS:
4. 1. The claimant decided to stand down as Chargehand in 1997.
2. The position of Chargehand in the claimant's store was made redundant in 2007 when the claimant's replacement as Chargehand opted to take Voluntary Redundancy.
3. In making this claim, the Union is acting against the spirit of the 2006 agreement.
DECISION:
The Court has considered the oral and written arguments made by the parties. In the context of the 2006 agreement as written, it cannot apply to the claimant. In the context, however, of the inexactitude of the agreed list of names, the admitted flexibility given by the claimant since 2001 and her level of interchangeability with the previous chargehand, the Court is of the view that some level of recognition is appropriate.
The Court varies the Rights Commissioner's Recommendation to include anex-gratiapayment of €1,500 to the claimant in full and final non-precedential resolution of the matter. The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
13th October, 2008______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.