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 Recommendation R-107318-Ir-11/RG.
BACKGROUND:
2. The worker, who is from India, has been employed by the Company since February, 2002, on a Stamp 2 Visa Contract which enabled him to work 20 hours per week whilst he attended college. The worker's case is that in August, 2007, he approached his Store Manager about the prospect of taking a career break for one year to return to India to gain experience in the computer industry and also to get married. At that stage he had 2 months' annual leave accrued and he started his career break on 1st November, 2007. The worker returned to Ireland in June, 2008, and approached his Store Manager in July about returning to work early from the career break. He claims that he was offered a 30-35 hour contract and that he would be put on the correct rate of pay in due course. Shortly afterwards he was requested to sign a contract which he initially refused as it had him on the wrong rate of pay. However, he signed the contract under protest. He claims that he raised the issue of the contract with a number of managers over the next few years but to no avail. He also claims that he was not aware that he had to apply for a career break in writing.
The Company's case is that the worker resigned his post from November, 2007, and returned on a different contract in July, 2008. Records show that when he was paid his holiday leave in October, 2007, he was paid as a "leaver". He has provided no record of his claim that he requested a one-year career break nor that it was approved by the then Store Manager. He signed his new contract in July, 2008. The worker raised the issue as a formal grievance in 2010 and an investigation took place which supported the Company's position.
The worker referred his case to a Rights Commissioner whose recommendation was as follows:-
"On the basis of the evidence I find and recommend as follows:-
1. There was no evidence from the Employer that the Claimant had tendered his resignation in 2007.
2. There was evidence from MANDATE, which showed that the formal procedures which do exist for the application of a career break and confirmation of same are not always applied.
I recommend that the Claimant should have his service with Tesco from 23rd February 2002. His period of leave in 2007 should be accepted as a Career Break and his starting pay when he resumed in July 2008 should reflect his actual service with the Company and all back money owed to the Claimant should be paid within six weeks of the date of this Recommendation".
The Company appealed the recommendation to the Labour Court on the 30th September, 2011, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 12th January, 2012. The following is the Court's decision:
DECISION:
The Court has carefully considered the submissions of both parties to this appeal.
The Court finds, as a matter of probability, that the Store Manager granted the worker concerned a Career Break for one year to commence in November 2007. Accordingly, his service after his return from the Career Break should be regarded as continuous for all relevant purposes. The Court so decides on this issue.
The Company, when granting a request for a career break, does not guarantee that the person will return to the same job on their return to work. The Career Break Agreement explicitly recognises and makes provision for this.
In this case the Court finds that there were no vacancies on the night shift when the worker returned from the Career Break. Accordingly, the Company would have acted in accordance with the terms of the Agreement if it had complied with the terms of the Agreement when assigning the worker to other duties that attracted a lower shift premium/consolidated pay rate.
The Court notes that the worker returned early from the Career Break and the Company accommodated him with immediate re-employment. At that point it was not required to adhere to the strict terms of the Agreement. Nor could the worker have expected to rely on it either. However on his scheduled return to work on the anniversary date of the commencement of the Career Break the Company was required to engage with the worker and advise him of the nature of the work that was available at that time. The Company technically breached the Agreement in this regard. However the Court is of the view that this is not fatal to their position in this case. The Court is of the view that had they so engaged with the worker they would have told him that there were no vacancies on the night shift at that time. There was no obligation on the Company to create such a vacancy in order to facilitate the worker at that time.
Nevertheless, in all the circumstances of the case, the Court finds that there were some shortcomings in the manner in which the Company dealt with this matter. The Court notes that the Company did accommodate the worker with the Career Break and an early return to work and this must also be taken into account. On the other hand the Company did not comply with the strict provisions of the Career Break Agreement in the manner in which it dealt with this worker.
Accordingly the Court does not see merit in the Union’s claim that the worker be restored to the consolidate night rate with effect from the date of his return to work in 2008. Instead the Court finds that the worker should have been restored to the consolidated night rate with effect from 1 November 2009 i.e. one year after his scheduled return from career break.
The Rights Commissioner’s recommendation is varied accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
23rd January, 2012.______________________
CON.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.