FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : MARKS AND SPENCER (IRELAND) LIMITED TRADING AS MARKS AND SPENCER - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation number r-128726-ir-12/RG.
BACKGROUND:
2. The Claimant was employed as a Fixed-Term Sales Advisor in the Grafton Street Store between 30 November 2009 and 2 January, 2010. He was re-engaged again on 28th May 2010, initially on similar terms, but was placed on a permanent contract of employment for 15 hours per week with effect from 5 November 2010. From early January 2012 the Claimant began working an additional 7.5 hours per week. He claims that he was verbally informed later in the same month that due to staff shortages there was an extra 8.5 hours' work available for him on Mondays. These extra hours never materialised. The Claimant raised a grievance. Management did not uphold the Claimant's grievance. It decided that the additional hours were never authorised or approved for the Claimant.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 4th July 2013 the Rights Commissioner issued her Recommendation as follows:-
"I find that the Employer is responsible for the current misunderstanding and therefore I propose:
(a) that the Claimant should be offered all available additional hours with immediate effect and
(b) that the Claimant be notified of any permanent posts with additional hours which become available and
(c) that the Employer pay the Claimant compensation of €500.00 (five hundred euro) within six weeks of the date of this Recommendation".
On the 25th July, 2013 the Worker appealed against 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 4th October 2013.
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner recommended that the Claimant"be offered all available additional hours with immediate effect."This aspect of the Recommendation has not been complied with to date. The hours that should have been offered to the Claimant have instead be allocated to other members of staff.
2. The Claimant has suffered considerable financial loss as a consequence of Management's decision not to issue him a contract for 32 hour per week.
COMPANY'S ARGUMENTS:
4. 1. Management offered the Claimant additional hours on a temporary basis as cover for short term absences through sick leave and a reduction in the number of casual staff employed in the store.
2. The Claimant misunderstood the offer that Management made regarding the temporary additional hours.
DECISION:
The Court has carefully considered the submissions of both parties to this dispute.
The Court decides that the amount of compensation awarded by the Rights Commissioner be increased from €500 to €1,000 and that the Claimant, with effect from the date of this Decision, be allocated additional hours on a fair and reasonable, as distinct from a priority, basis in line with all the other members of staff in the relevant area.
The Rights Commissioner's Recommendation is varied accordingly.
Signed on behalf of the Labour Court
Brendan Hayes
22nd November, 2013______________________
JFChairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.