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: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Recommendation R-105462-IR-11/SR.
BACKGROUND:
2. The case before the Court concerns the Employer's appeal of a Rights Commissioner's Recommendation. The dispute relates specifically to the Worker's claim for compensation following the loss of earnings ensued as a result of the Employer's decision to restructure its management system within its Castlebar store. The Worker was previously employed as a Section Manager and later applied for the role of Team Leader which attached a compensation buy-out proposal for the loss of earnings as a result of the lesser rate of pay associated with the position. The Worker was successful in his application however at the time he was not appointed to the position. At a later stage the Worker was advised that as part of a restructuring initiative, the Section Manager position was being replaced with the role of Line Manager. The Worker chose not to apply for this role and was appointed to the lesser paid Team Leader position however at this stage there was no compensation buy-out offered. The Worker was under the impression that he would be entitled to compensation for the loss of earnings he would experience however the Employer would not move from its position and no offer was made to the Worker. The Worker proceeded to raise his grievance through the avenue of internal grievance procedures.
The matter was later referred to a Rights Commissioner for investigation and recommendation. On the 21st September 2011, the Rights Commissioner issued his Recommendation as follows:
"As a full and final settlement of the claim I recommend that the Employer pay the Claimant compensation of 1.5 times his annual loss in earnings.
I so recommend".
On the 24th October, 2011 the Employer appealed the Rights Commissioners 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 March, 2012.
UNION'S ARGUMENTS:
3.1. The Worker has been treated in an unfair manner and was unilaterally appointed to a role with lesser earnings and reduced hours of work.
2. The Worker was not informed that the compensation buy-out was no longer available during the second management restructuring phase and he was under the impression that he would be compensated for the loss of earnings ensued.
3. The Worker is seeking compensation as a result of the loss of earnings he has experienced in his current position at a lower rate of pay than that which he previously received.
EMPLOYER'S ARGUMENTS:
4.1. The buy-out proposal was associated with the first phase of re-structuring only. Management contends that it was not offered at the time of the second re-structuring phase.
2. Management maintains that the Worker was not appointed to the Team Leader role in the first instance of re-structuring hence he was not entitled to compensation when he later moved to this position during the second stage of re-structuring.
DECISION:
This is an appeal by the Company of a Rights Commissioner’s Recommendation which found in favour of the Claimant’s claim for compensation of loss of earnings. The loss of earnings arose when the Company decided to implement a restructuring programme within the Castlebar store. The Claimant who had been employed as a Section Manager applied in April 2010 for a position as Price Integrity Team Leader in the new restructured system. He was informed that if successful he would be entitled to compensation for the loss of earnings which would ensue. While he was deemed successful for the role he was not appointed. Subsequently in a second restructuring exercise in June 2010, the position of Section Manager was being replaced by a more defined and enriched role entitled ‘Line Manager’. As the Claimant opted not to apply for a Line Manager position due to a new mobility condition in the role, he was appointed to a Team Leader (in GHS) position on reduced earnings.
The Company informed the Court that compensation of loss of earnings was not an option in the second restructuring exercise and that this was explained to the Claimant at a meeting in June 2010. Consequently, it rejected his claim for compensation and the Claimant pursued his grievance under the industrial relations process.
Having considered the submissions of both parties the Court is satisfied that when he applied for the initial Team Leader position he was informed that he would receive compensation for any loss of earnings. So when he was appointed without interview, to the GHS Team Leader position in October 2012, he continued to hold the view that he should similarly be entitled to compensation for loss of earnings. In the circumstances, the Court is satisfied that when the Claimant applied for a Team Leader position under the terms of the Company’s restructuring plans and while not appointed to the first vacant post he was appointed to an alternative post without application.
Accordingly, the Court upholds the Rights Commissioner’s Recommendation and decides that the Claimant should be paid compensation for his loss of earnings at one and a half times the annual loss. Therefore, the Company’s appeal fails.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st March 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.