FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CAMPBELL CATERING LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of the Recommendation of a Rights Commissioner R-056820-Ir-07
BACKGROUND:
2. The Company is a contract catering company which employs approximately 4000 workers in Ireland. The worker concerned commenced employment as a Night Supervisor with the Company on the 3rd August, 2005. Her salary was €12.65 per hour. She initially worked six months during the day to learn the job and then transferred to night duties. The worker's claim is that she was told by the recruitment agency that she would be paid €16.44 per hour following her probationary period. The Company's case is that, due to an administrative error, the worker was paid a 30% night-shift allowance from April, 2006, on top of her rate of €12.65 per hour This resulted in the worker receiving €3,500 which the Company has not recouped. An investigation took place. The 30% was removed from the worker's wages in September, 2006, but the worker's rate was increased to €13.25 as a goodwill gesture. The Union is seeking that the 30% allowance be applied retrospectively to the date the worker commenced employment. (A second element of the Union's case relates to a claim for overtime to be paid for time worked after 39 hours per week. The worker is currently contracted to work 42 hours per week. The Rights Commissioner did not deal with this element of the claim in his recommendation.)
The worker referred her case to a Rights Commissioner and his recommendation was as follows:
"In view of the foregoing I recommend that the application of the 30% premium from the date the claimant was first assigned to the role of night supervisor.
Concerning the second or non-advised claim I have decided that it would be inappropriate for me to make a recommendation in the absence of the formal notification of the Act."
Both parties appealed the 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 January, 2009.
UNION'S ARGUMENTS:
3. 1. The worker took the job believing that she would receive the 30% allowance. She was told by the recruitment agency that she would receive € 16.44 per hour and she was also told by one of her managers in the Company that she would receive the allowance. The Company applied it because it was correct for night duties.
COMPANY'S ARGUMENTS:
4. 1. The worker's pay of €12.65 was inclusive of the 30% night-shift allowance, as it was for all her colleagues appointed at that time. She signed a contract to that effect. If she had been paid 30% on top of the €12.65 she would have been earning more than colleagues who had much greater service and experience than her.
2. The Company does not operate a system whereby an employee receives a 30% shift allowance when they finish probation. The worker concerned received the allowance - in error - two months after her probation ended so there was no correlation involved.
DECISION:
Having considered all of the submissions put to it in this case, the Court's view is that the most appropriate solution to this case is that the premium payment issue be resolved by the payment to the claimant of a lump sum of €12,000.
The Rights Commissioner's recommendation is varied accordingly. The Court so decides.
The Court notes, without making recommendation on the matter, that the Company has offered to pay retrospection on this level to the 1st May, 2007.
Signed on behalf of the Labour Court
Raymond McGee
9th February, 2009______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.