FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD (REPRESENTED BY IBEC) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No. ADJ-00004366.
BACKGROUND:
2. This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 17 May 2017 the Adjudication Officer issued the following Recommendation:-
- “The option of reverting to the previous attendance pattern is not feasible and I am recommending accordingly, in full and final settlement of this dispute, that the respondent pay the claimant €2,652 compensation within 42 days of the date of this recommendation”.
The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 22 June 2017 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
Labour Court hearings took place on 3 November 2017 and 13 June 2018.
DECISION:
It is the Employers position that following a review of its trading hours in the shop where the Worker is employed his hours of work were changed to reflect an earlier closing time in the store. The changed hours were within the Workers contractual obligations. The hours lost were outside of his contractual liabilities and were worked on a voluntary basis however, they did attract a premium payment. The Worker still worked the same number of hours but the hours did not attract a premium. The nature of the Employer’s business is such that fully flexible contracts are required. The Employer has engaged with the Worker in relation to his new hours but the Workers domestic arrangements limit the options that are available in terms of hours that attract premium payments. IBEC on behalf of the Employer confirmed to the Court that the Employer does not pay compensation for loss of earnings in circumstances where the change to working hours falls within the contracted hours. They have in the past compensated for loss of earrings in situations where there has been contractual changes i.e. abolition of night work.
It is the Unions position that this Worker is the only worker to suffer a loss. The Union on behalf of the Worker are of the view that the Employer has in the past compensated for loss of earnings within contractual hours but was unable to cite any specific examples. The parties have engaged in terms of mitigating his loss but as the Worker could not do early morning starts the only viable option was to roster the Worker for additional Sundays and the balance of the loss to be awarded as a lumpsum payment.
The Court having read the submissions made and listened carefully to the oral submissions on the day recommends in the exceptional circumstances of this case that the parties engage to agree a finite number of additional Sunday Shifts to be worked over an 18-month period with effect from the date of this Recommendation in full and final settlement of this claim.
The Recommendation of the Adjudication Officer is varied accordingly.
The Court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
LS______________________
26 June 2018Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Louise Shally, Court Secretary.