INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
WILLIAM TODD & COMPANY LIMITED
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms Owens
Employer Member: Mr Keogh
Worker Member: Mr Rorke
1. Appeal by the Company against Rights Commissioner's Recommendation No. BC 427/95.
2. The Company is a long established department store which was purchased by Brown Thomas in 1991. It employs 150 workers. The appeal concerns a worker who commenced employment as a sales assistant in 1981. He has worked in various departments. The worker was promoted to chargehand in 1990 and transferred to the Hi-Fi and Electrical Department. In 1995, the worker was transferred to the menswear department as chargehand. Subsequent to his transfer, the Union submitted a claim in respect of the worker's reduced commission earnings. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 30th October, 1996 the Rights Commissioner issued his recommendation as follows:
"In the light of the submissions and the further details submitted to me I believe it would be reasonable for the employer to compensate the worker at two years loss of commission earnings. This must be identified by taking into account the average commission earnings in the Hi-fi Department for the years 1993/1994, 1994/1995, 1995/1996 as against the average commission earnings in the Menswear Department for the similar period. I calculate that the weekly loss amounts to £10.19 which on my formula will produce a compensation figure of 104 by £10.19.
I recommend accordingly".
The worker was named in the Rights Commissioner's Recommendation.
On the 9th December 1996, the Company appealed the recommendation to the Labour Court. The Court heard the appeal in Limerick on the 23rd April, 1997.
3. 1. Commission, by definition, as it is a percentage, is a variable earning with no guaranteed level. Varying factors influence the level of sales within and between Departments from time to time. This variation in commission is clearly part of the terms and conditions of employment. To compensate in respect of the variation is entirely contrary to the meaning of commission.
2. Transferability of staff is an integral part of the business and operates to the benefit of the development of the individual staff in the Company. In the case of transfer workers receive the commission appropriate to the Department in which they work. Over the past four years twenty transfers have taken place without any claim in respect of new commission earnings.
3. To concede compensation in this case introduces a cost to all future transfers and cannot be accepted by the Company. The ultimate result would be to limit transferability and, hence, career development.
4. 1. At the time of the worker's transfer from the Hi-Fi and Electrical Departments he was in receipt of commission earnings of approximately £100 per week. On transfer to the Menswear Department the worker's earnings decreased to approximately £55 - £70 per fortnight. In recent weeks his commission averages at £35 per week gross. This is a substantial reduction.
2. The worker's financial commitments were based on the higher level of earnings that he received in the Hi-Fi and Electrical Departments. As a result of the reduction in his earnings the worker is under considerable financial pressure and his standard of living is significantly affected.
3. The Union accepts the principle of staff transferability but it should be applied in a way that does not victimise staff. They should not have to suffer a considerable loss of earnings on an ongoing basis.
The Court has considered the submissions, written and oral, made by the parties to this appeal against a Rights Commissioner's recommendation. The Court notes that the Union does not dispute the Management's right to transfer the claimant and are not seeking his return to the Hi-Fi Department. In the Court's view it is also difficult to establish actual loss of earnings and accordingly does not uphold the Rights Commissioner's recommendation of payment of compensation for loss of earnings.
In the circumstances of the case and, taking into account the length of time the claimant had been in the Hi-Fi Department, the Court recommends that the Company make an ex-gratia payment of £950 in full and final settlement of the claim.
The Court amends the Rights Commissioner's recommendation accordingly and so decides.
Signed on behalf of the Labour Court
30th April, 1997______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.