FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IMPERIAL TOBACCO (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner r-087243-ir-09/JW
BACKGROUND:
2. The Claimant has worked with the Company as a Fitter since August 1981 and as a Working Technical Chargehand since December 2006. He claims that he did not receive the payment of a shift and a meal allowance when he supervised a planned overhaul of machinery over a three week period 18th February to 7th March 2008 contrary to the terms of his Contract of Employment. The Claimant believes that in obliging the Company he should not have lost his allowances and that the step down arrangement should not be applied to him in these circumstances.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 8th December, 2010, the Rights Commissioner issued his Recommendation as follows:-
'I recommend that the employer pay to the claimant the sum of €341.28 for one week's loss of shift premium and also for 3 weeks loss of meal allowance for the period 18 February 2008 to 7 March 2008.'
On the 10th January 2011 the Company 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 8th June 2011.
UNION'S ARGUMENTS:
3. 1. When the Worker learned that he was not to be paid his allowances he informed Management that he would carry out the overhaul of the machinery under protest.
2. The Worker should not be at a loss while carrying out a request to supervise the overhaul programme.
COMPANY'S ARGUMENTS:
4. 1. The step down payment of two weeks' shift compensation was appropriate and was in line with the existing agreement between the Company and SIPTU as of the 9th October 1991.
DECISION:
Having considered the submissions of the parties to this appeal the Court has reached the following conclusions: -
1 The Claimant's contract of employment provides that his primary role involves attendance on early or late shifts. It goes on to provide that he can be required to work on any other shift pattern operated by the Company and that he is required to be flexible in his attendance pattern.
2. This provision comprehends an obligation to work on days if required. On foot of this provision the Company required the Claimant to undertake the day work duties giving rise to this dispute. The Court is satisfied that the Company acted properly and in accordance with the collective agreement between it and the Union in its application of this provision.
3. The requirement for the Claimant to work on the day shift had not arisen prior to the occasion giving rise to this dispute nor has it arisen since. Consequently, the Court is satisfied that attendance outside his normal pattern should only arise in exceptional circumstances. Nevertheless when it arises the Claimant is required to undertake the duties.
In all the circumstances of the case the Court believes that should a situation again arise similar to that given rise to this dispute the matter should be discussed between the parties having regard to the conclusions of the Court referred to above. The Court further believes that the Company's offer to pay the Claimant an amount equal to his loss in the period in dispute should be accepted in full and final settlement of the current dispute.
The Recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
27th June, 2011______________________
JFChairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.