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: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner r-116483-ir-11/DI & r-117718-ir-11/DI.
BACKGROUND:
2. The case concerns an appeal by the Union of Rights Commissioner's Recommendation r-116483-ir-11/DI & r-117718-ir-11/DI.
The issue concerns proposed changes to the workers terms and conditions of employment following restructuring within the Company. The worker's position is that his terms and conditions were unilaterally changed by Management when he was to be transferred to another work location which was not in compliance with his contract of employment.
The Company's position is that the restructuring necessitated a change in grading structures and when the worker did not apply to be assessed for a new role for which he was eligible, he was required to change work location which was in compliance with his terms and conditions of employment.
The dispute was referred to a Rights Commissioner. A Recommendation issued on the 10th December 2012 and recommended as follows:-
- "That in the interests of good industrial relations, the Final Written Warning and the week's suspension be rescinded. The Claimant to be paid the wages that would have been due to him had he not been suspended.
- That the Claimant accepts the Contract of Employment setting down his terms and conditions and that he fully engage with the Respondent, in particular with matters relating to his development.
- The parties accept that this Recommendation is unique to the circumstances of this case and forms no precedent for any future positions or claims"
A Labour Court hearing took place on 24th April 2013.
2. 1. The worker's contract provides that relocation is to be by agreement only. As a result Management were incorrect in imposing disciplinary sanctions on this issue.
2. The selection process for the position of Deputy Manager was not suitable to the worker. The worker had nocertainty in relation to the outcome of the process and engaging in it would have left him with no certainty as to his future position within the Company.
COMPANY'S ARGUMENTS:
3. 1. The worker did not engage with the Company on the restructuring process. He also failed to meaningfully consider the options that were available to him, or raise a grievance in relation to issues in dispute.
2. The worker did not put himself forward for the selection/assessment for the Deputy Manager role, nor did he accept any of the alternative options that were put to him. Eventually there was no option but to suspend him for failing to comply with reasonable Management instructions.
DECISION:
Arising out of the restructuring that was introduced in 2010 the Worker was entitled to be redeployed to suitable alternative employment within the organisation without loss of pay or status and within a reasonable commuting distance from his home. The Company should take all reasonable steps to ensure that this objective is achieved in this case. Equally the Worker, in order to protect his pay and conditions of employment, must extend reasonable co-operation to the Company by engaging with processes that are designed to achieve this end.
The Court notes that these objective has been largely, though not completely, realised at this time.
Accordingly, in the particular circumstances of this case, the Court decides that the Worker’s protection of earnings should continue for a period of 12 months commencing on the date of this recommendation. Should the Bridging Programme not progress him to the required standard of performance within that time scale the parties should engage with a view to extending that period if appropriate or identifying a suitable alternative position within the Company. Should the parties fail to reach agreement at that time the issues in dispute should be referred back to this Court for a definitive decision.
The Court finds no support in section 13(9) of the Act for extending the terms of the Charge-hand Agreement to this category staff.
Finally the Court notes that the 2002 Contract of Employment as amended by agreement applies in this case. However the Court also notes that it requires further amendment to reflect current realities. Accordingly the Court directs the parties to engage, through normal industrial relations procedures, with a view to agreeing suitable and appropriate amendments to the Contract of Employment of the Worker concerned.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
26th June, 2013.______________________
AH.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.