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 Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner Recommendation r-068512-ir-08/JT
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner Recommendation r-068512-ir-08/JT. The issue in dispute concerns an employee who claims to have been employed by the Company as a Chef Manager to work within that profession in the employer's premises.
The Union further contends that the Company did not deal adequately with issues raised by the worker, did not accept he worked overtime and failed to supply him with a staff handbook or adequate training.
Management refutes the claim on the basis that the worker's contract of employment was that of a Section Manager and not a Chef Manager as claimed by the worker. Management further contends that the worker went absent on sick leave and did not return to work so it was, therefore, impossible to deal with his grievances.
The dispute was referred to a Rights Commissioner for recommendation. His Recommendation issued on 3rd June, 2009 and found that there had been fault on both sides; Management had not dealt with grievances as expedtiously as it may have done, yet the worker didnt return from sick leave for the grievances to be dealt with. In relation to the payment claimed for additional hours worked, there were no records to suggest additional work had been carried out yet a good will offer was made by the Company. The Rights Commissioner further recommended that the Company should have made it clear to the worker that the future of the restuarant facility was under review before making him an offer of employment. In concluding, the Rights Commissioner noted that the Company had paid the worker approximately €5,500 sick pay despite him being on probation and that the worker had failed to return Social Welfare cheques to the Company to the value of approximately €1,500. He recommended that the amounts owing to the Company be written off as a resolution to the issues between the parties.
On the 2nd July, 2009 the worker appealed the Rights Commissioner's Decision in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 9th September, 2009.
UNION'S ARGUMENTS:
3 1 The worker was employed as a Chef Manager on the basis of his previous experience. It is unacceptable that Management provided a different contract stating that the worker was a Section Manager. Effectively, this meant the worker could be transferred within a management role to anywhere in the store and not within the Catering function he was experienced in.
2 The original contract, which stated the worker was employed as a Chef Manager, was lost while on file in the Department of Social and Family Affairs. The worker was then given a new contract with a new job classification yet was assured his role within the Company would not change. This assurance was not adhered to by Management.
3 Management also failed to deal with grievances raised by the worker in relation to working conditions and issues relating how he, the worker was being treated by management. The worker was also promised training and a pay rise after three months employment with the Company, which were not provided by the Company.
COMPANY'S ARGUMENTS:
1 The Company does not employ Chef Managers. It issues generic Section Manager contracts to such staff, which obligate workers to transfer to different sections within the Company.
2 Management has at all times treated the worker fairly and in the appropriate way. Sick leave entitlements were extended despite the worker being on probation. The worker then breached the Sick Pay Scheme by not returning Social Welfare Disability payments.
3 Management was not in a position to adequately deal with the worker's grievances as he did not return to the workplace.
DECISION:
Having considered the submissions made by the parties, the Court dismisses the appeal and upholds the Recommendation of the Rights Commissioner.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
30th September 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.