FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND - AND - MANDATE DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation No: r-089625-ir-10/JOC
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Rights Commissioner's Recommendation No: r-089625-ir-10/JOC. The issue concerns a worker assigned to the Dry Grocery area of the business but who is also requested on occassion to operate a check out as well as carrying out additional responsibilities in the Price Integrity/System area of the business. The workers position is that a collective agreement between the parties preclude her, on the basis of her length of service in the Company (pre 1996), from carrying out such workplace changes.
The matter was referred to a Rights Commissioner for investigation. His Recommendation issued on the 19th August, 2010. The Rights Commissioner receommended that parties examine comparable stores in relation to staffing levels and that the worker co-operate with management in relation to the Price Integrity/ System requirements. He also recommendd that in exceptional circumstances the worker would co-operate with the requirement to operate a check out.
On the 31st August 2010, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 17th November 2010
UNION'S ARGUMENTS:
3 1 The Claimant's contract with Tesco predates the current General Assistant contract which requires mobility throughout the store
2 Staff who were employed pre 1996 were not reqiured to be interchangeable throughout the store.
3 The worker does not accept the requirement to operate the new Price/Integrity System procedure outside of the Dry Grocery department as this will increase the responsibility level and the work cannot be carried out within her current hours of work.
COMPANY'S ARGUMENTS:
4 1 The worker has failed on numerous occasions to follow reasonable management instructions. This is unacceptable in any working environment and cannot continue.
2 The worker is fully trained in all aspects of the store's operation. It is unreasonable for her to refuse to carry out the duties required of all General Assistants and then for the Union to subequently threaten management with industrial action.
3 The Company has accepted the Rights Commissioner's Recommendation as the most appropriate and reasonable method of resolution of the current dispute.
DECISION:
The arguments advanced by the parties to this appeal raised central questions concerning the correct construction of collective agreements concluded between the parties in 1999 and 2006. `These questions of interpretation were not formally before the Rights Commissioner and are not properly before this Court. Moreover, both parties expressly told the Court that they do not wish the Court to make any definitive findings on those questions in the present case.
In these circumstances the Court’s approach to the present case is to deal with what is fair and reasonable in the circumstances of this individual claimant. Accordingly, the decision of the Court in this appeal is strictly without prejudice to the position of either party to the wider question of the correct application of the collective agreements referred to earlier. The Court should not be understood as offering any opinion on the question of interpretation that may yet have to be addressed by the parties at an overall Company level.
Having considered the submissions of the parties the Court has concluded that the recommendations of the Rights Commissioner are reasonable in the circumstances of this particular case. In relation to the work involving Price Integrity Systems, what the Claimant is being asked to do is essentially the same job as she is presently doing being carried out in a different way. That is a classic incidence of on-going change which is a normal feature of every employment with which workers are expected to cooperate. In these circumstances it is not unreasonable to expect the Claimant to undertake this work.
With regard to the check-out operation, the Claimant has the necessary skills to undertake this work. The Rights Commissioner recommended that the Claimant should undertake this work in exceptional circumstances. This should be understood as limiting the instances in which the Claimant will be assigned to such duties to circumstances which are truly exceptional. Consequently the Claimant should not be assigned to check-out duties with any degrees of frequency or regularity.
With that clarification the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
8th December 2010______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.