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-105460-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 employed as a Section Manager in the back stores of the Employer's Castlebar outlet. As part of a re-structuring initiative the Employer advised the Worker that the Section Manager position was no longer in existence and it would be replaced with the Line Manager role. The Worker was further advised that should he wish to become a Line Manager he would have to formally apply and participate in an interview process. The alternative options available to the Worker were to become a Team Leader or General Sales Assistant, with both positions involving a reduction in status, earnings and hours of work available. The Worker did not apply for the Line Manager position and the Employer appointed him to the lesser paid Team Leader role.The Worker was of the view that the Employer should offer him re-instatement to the no longer viable Section Manager position in the back stores or alternatively offer him a redundancy package in line with previously agreed packages. However, the Employer would not concede to the Worker's claim. The Worker formally raised 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 inequitable manner and was unilaterally appointed to a role with lesser earnings and reduced hours of work.
2. The Employer should have offered more suitable options including redundancy, to the Worker given the fact that his previously occupied position was no longer available.
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 Employer contends that the Worker was provided with an opportunity to apply for the re-structured and enhanced Line Manager position.
2. The Employer is of the view that they had no alternative other than to appoint the Worker to the Team Leader position.
3. The Employer maintains that there was no option to offer redundancy to the Worker as his position had not been made redundant, instead it was replaced with an enhanced managerial role.
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 had been employed as a Section Manager of the Back Stores Area of the Castlebar store. As part of the restructuring exercise the position of Section Manager was replaced by a more defined and enriched role entitled ‘Line Manager’.
The programme provided that if the Claimant wished to become a Line Manager then it was incumbent upon him to apply for such a position. In the circumstances, the Claimant decided not to apply for a Line Manager position therefore the Company placed him in a Team Leader role, with a consequent loss of earnings.
The Union on behalf of the Claimant sought either a redundancy payment or compensation for loss of earnings. This was rejected by the Company on the basis that the option was available to him to apply for a Line Manager position and as he decided not to do so, he had made a choice and in those circumstances no compensation payments would be made.
Having considered the submissions of both parties the Court is satisfied in the circumstances of this case that the Claimant had little choice but to undertake the role of Team Leader and suffer a loss of earnings. The Rights Commissioner found that the Claimant’s change of status was not entered into on a voluntary basis and accordingly recommended that compensation of one and a half times his annual loss of earnings should apply. The Court concurs with the findings of the Rights Commissioner and accordingly upholds his Recommendation. 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.