FULL RECOMMENDATION
(r-120369-ir-12) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
WESTDOC LTD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
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SUBJECT:
1. Appeal of Rights Commissioner Recommendation No: r-120369-ir-12/MH
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner Recommendation No: r-120369-ir-12/MH. The issue concerns a claim by the worker that he be rostered to carry out his driving duties (19.5 hours per week) from the Ballina and Belmullett areas of Mayo as provided for in his contract of employment. The worker contends that rostering him from Westport represents a greater travelling distance than comprehended by his contract of employment. Management's position is that it does not have the hours available within the Ballina and Belmullett areas but there are hours available in Westport to fulfil the workers contractual entitlement.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 16th October 2012. The Rights Commissioner recommended that the contract be amended to provide for 10.5 hours of work and the additional 9 hours be made redundant with the appropriate compensation.. The Rights Commissioner did not recommend that the 19.5 contractual hours of work be reinstated in the Ballina/ Belmullett areas.
On the 12th November 2012, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 24th September 2013.
UNIONS ARGUMENT:
3 1 The worker has a contractual entitlement to 19.5 hours per week in the Belmullett and Ballina areas. The Westport area does not best suit the workers needs given the distance to be travelled to and from work. The worker is requesting that he be provided with his contractual hours in the Ballina and Belmullett areas.
COMPANY'S ARGUMENT:
4 1 The organisation does not have the work available in the Ballina/ Belmullett area to satisfy the entirety of the workers contractual entitlement. It does have sufficient hours in the Westport area which can be offered to the worker immediately. This is entirely compliant with the workers contract of employment with respect to work locations.
DECISION:
The Court notes that the claimant is prepared to work from Westport. The Court further notes that the employer is in a position to offer him 19.5 hours per week on that basis. In these circumstances the obvious solution to this dispute is for the Claimant to accepted the employers offer.
It is the decision of the Court that the Claimant should accept the hours available in Westport and on that basis the employer should offer the Claimant 19.5 hours per week. This is without prejudice to the different understanding of the parties as to the correct construction of the Claimant’s contract of employment.
Having regard to all the circumstances of this case the Court believes that the Claimant should not be required to repay the compensatory amount previously paid.
The Rights Commissioner’s recommendation is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
3rd October 2013______________________
AHChairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.