FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation r-105939-ir-11/GC.
BACKGROUND:
2. This dispute concerns the Worker's claim that the 2006 Agreement between Tesco and Mandate did not change her job role from Cook / Catering Assistant to General Assistant. This matter was referred to a Rights Commissioner for investigation and recommendation. On the 31st August, 2011 the Rights Commissioner issued the following Recommendation:-
- “I recommend to resolve the issue, that the Company reissue the General Assistant contract to the Claimant with an accompanying letter of comfort which confirms that the [Claimant’s] current duties are that of Cook / Catering Assistant. For her part, [the Claimant] should participate in ‘rumble’ when requested”.
On the 8th September, 2011 the Worker 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 4thJanuary, 2012.
3. 1. The Worker has given many years of loyal service.
2. The role of Cook / Catering Assistant has not been changed by collective agreement since 1999.
3.The Worker has a legitimate expectation that she remains a Cook / Catering Assistant until any future collective agreement deals with this issue.
COMPANY'S ARGUMENTS:
4. 1. The 2006 collective agreement introduced a standard grade structure.
2. The Worker is a General Assistant assigned to canteen duties.
3. The Worker is, like all staff and managers, required to take part in the ‘rumble’ if she is on duty when it happens in the Store.
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.
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 on 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 circumstance of this particular case.
The employer is entitled to expect that all staff will be available to ensure the effective operation of the core business of the Company. Canteen staff cannot expect to be exempt from such a requirement.
To this end the Court takes the view that the recommended letter of comfort should provide for the Claimant to be primarily engaged in Cook / Canteen Staff duties as heretofore. It should further provide that, where the workload in the Canteen permits and the operational requirements of the Store require it, she should be available to become involved in the “rumble” as and when directed to do so by the Store Manager.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
16th January, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.