FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ALLIED FOODS LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Rights Commissioner Recommendation No: r-092263-ir-10/SR
BACKGROUND:
2. This case concerns an appeal by the employer of Rights Commissioner Recommendation No: r-092263-ir-10/SR. The issue concerns a former employee of the Company who claims not to have been paid a 25% shift premium when her role within the Company changed to night shift from day work. The Company, which is involved in the distribution of frozen and chilled foods, claims that customer demands required it to change its operations an have an administrator present on the night shift between the hours of 12pm and 8am. The Company contends that the worker was a salaried member of staff and received wage increases in excess of the shift premia received by the General Operatives on the night shift. The Union's position is that the worker should have received the appropriate premium on the basis of the requirement to change her working hours. The Union further contends that her pay while on days would have been greater than the General Operatives so the premium should apply when the worker changed over to night work.
The dispute was referred to a Rights Commissioner for investigation. His Recommendation issued on the 15th November, 2010 and recommended that while a 25% shift premium had never been applied to salaried staff, the worker should be compensated in the amount of €4,500 in respect of the unsocial element of the requirement to change her working hours to night work.
On the 22nd December 2010, the employer 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 the 1st April, 2011.
UNION'S ARGUMENTS:
3 1 The worker had no choice in changing her hours of work to night work. The change was brought about by customer needs and accordingly the worker, having accepted the change, should be paid the same shift premium that applied to other workers on the night shift.
2 The worker already received a salary greater than the general operatives while she worked a day shift. In such circumstances management cannot reasonably contend that the differential was because she moved from day work to night work. The worker tried to raise the issue with management but events took over and eventually the worker was made redundant.
COMPANY'S ARGUMENTS:
4 1 The Company had no option but to implement the changes as required by one of its main customers. The worker accepted the change in shift as it suited her personal circumstances at the time. She was well aware that the increases in pay she had received were to take account of the responsibilities of the role and the change from day work to night work.
2 There was no formal notification that the worker had a greivance with the employer.If the worker had a grievance concerning the payment of the shift premium she should have raised it in line with Company procedures.
DECISION:
Having carefully considered the submissions of both parties the Court upholds the Rights Commissioner's recommendation and rejects the Company's appeal.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
12th April 2011______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.