FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner Recommendation No: r-112303-11-ir/MMG
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner Recommendation No: r-112303-11-Ir/MMG. The issue concerns a worker who was employed by the Company as a Section Manager. The Section Manager grade was subsequently discontinued and the worker had an option to apply and compete for the new Line Manager grade within the organisation. The worker chose not to apply for the position of Line Manager, instead being appointed to a Team Leader role. The new role resulted in a lower rate of pay and reduced working hours per week for which the worker is seeking compensation and the restoration of her previous working hours. Management's position is that the worker chose not to apply for the Line Manager role and in those circumstances took on a new role that attracted a lower rate of pay, although had the worker engaged with management an accommodation could have been reached. Management further contends that it cannot increase the worker's hours of work as the restructuring has reduced the full time hours worked by all employees of the Company.
The matter was referred to a Rights Commissioner for investigation. His Recommendation issued on the 20th April, 2012 and recommended that the parties meet to confirm the position, roles and pay details for the claimant in relation to the Team Leader role.
On the 21st May, 2012 the worker appealed the Rights Commissioners Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 19th September, 2012.
UNION'S ARGUMENTS:
3 1 This was a unilateral withdrawal of the workers position within the organisation. Despite the cessation of the Section Leader Grade, the worker remained on in the position for approximately six months to facilitate management in completing the Line Manager roll out process. It was only after this period of time had elapsed that discussions took place on the alternative options available to the worker
2 There were other workers in analogous situations that retained their terms and conditions on a red circled basis or compensated for loss or earnings for the reduced rate of pay and hours of work pertaining to the new role. It is unacceptable that the worker in this case was not offered the same arrangements as had previously been applied to others.
3 Some workers who were unable to go forward for the Line Managers role were permitted to remain on their rates of pay for 12 months yet the worker in this case was subject to an immediate reduction in earnings and reduced working hours.
COMPANY'S ARGUMENTS:
4 1 Management made every effort to resolve the dispute and could have reached an accommodation had the worker engaged in the process with them.
2 Management cannot restore the workers previous working hours as the restructuring has resulted in all full time contracts reclassified at 35 hours per week.
3 Management does not accept that compensation is appropriate in the current circumstances. The worker was suitable for and could have applied for the Line Manager role. As she chose not to apply for the new role, and failing to engage with management on alternative options, she undertook the duties of the Team Leader.
DECISION:
Issue similar to that arising in this appeal were considered by the Court in Appeal Decisions AD1212 and Appeals decision AD1213. Both cases involved the same employer and the same union as in this case. The Court can see no material differences in the facts of this case from those considered by the Court in those cases. In both cases the Court decided that the Claimants be compensated at the rate of 1.5 times their annual loss.
Having considered the submissions of the parties in this case the Court has decided to vary the Rights Commissioners recommendation so as to provide that the Claimant be provided with a 39 hours contract and that she be compensated for the loss of earnings which she suffered at the rate of 1.5 times her loss.
The Union's appeal is allowed and the recommendation of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
11th October 2012______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.