INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
ALLIED IRISH BANK PLC.
- AND -
(REPRESENTED BY MANGAN O'BEIRNE SOLICITORS.)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Appeal by the worker against Rights Commissioner Recommendation No.315/98.
2. The appeal concerns a worker who commenced employment as a head waiter at the Allied Irish Bank Bankcentre, Ballsbridge, in 1992. For the previous 15 years he had worked as a head waiter in a leading hotel in the city. In mid 1997 the worker advised Management that he would not undertake any additional evening overtime as this was at variance with his contract of employment. Management stated that the worker was in breach of his contract of employment in refusing to work his share of evening overtime. Following a number of meetings Management took disciplinary action against the worker advising him that he was being re-assigned to other duties as a waiter at a reduced salary. This has not been effected pending the processing of the dispute through procedures. The worker claimed that he was unfairly treated and referred the issue to a Rights Commissioner for investigation. On the 8th September, 1998 the Rights Commissioner issued his recommendation as follows:
"I recommend that the worker and the Union accepts the Bank's re-assignment with immediate effect and that the worker holds his present weekly salary for a period of four weeks."
(The worker was named in the Right Commissioner's recommendation.)
On the 16th October, 1998, the worker, through his legal representatives appealed the recommendation to the Labour Court. The Court heard the appeal on the 3rd December, 1998, the earliest date suitable to the parties
1. When the worker was originally offered the post in 1992 he accepted it because he was given an assurance by Management that he would be required to work day shifts. This was the main attraction for the worker and the reason why he left the more prestigious, better paid post in the hotel.
2. When the worker commenced employment he was asked to do overtime and as he was new in the position, agreed to do so, as a matter of courtesy.
3. In May, 1997, the worker approached Management and indicated that he required more help and staff to do his job properly. Though he received temporary assistance he was left short-staffed and had to cover the overtime situation.
4. The worker accepts that he received letters from Management relating to the alleged breach of discipline regarding his refusal to work overtime. However, the worker did not receive the necessary extra staff he requested.
5. While the worker's contract of employment required him to be flexible in his duties, there is no requirement in relation to working overtime or nights. His normal hours of work were stated to be 39 hours inclusive of lunch hour, and his normal working week was Monday to Friday. The worker understood this to mean he would work during the day-time and that there was no requirement to work overtime, evenings or weekends.
6. The employee only worked overtime because of a sense of duty and responsibility to his employers. He felt duty bound to cover for inadequate staffing which was afforded to him. He attempted to address the staff issue with Management on a number of occasions. He felt if necessary to take this unilateral decision because his employer was not complying with the agreement made with him.
7. If a practice had grown whereby the employee worked overtime it was not done by him by choice. He never contracted to do so. The worker's actions in doing so do not represent a variation of his term of employment. Custom and practice cannot be implied requiring the employee to work overtime or weekend work as he never agreed to such a practice.
1. The requirements of the head waiter's role, including those of flexibility were clearly outlined to the worker during the recruitment process. The worker clearly understood the requirements and worked overtime consistently from 1992 to 1998. All head waiters are required to work a reasonable number of evening hours and be flexible in their working arrangements in order to ensure the provision of a superior executive dining service.
2. The Bank was most surprised when the worker continually refused to work evening hours from mid-1997 without any reasonable explanation, and contrary to previous well established working arrangements.
3. The Bank made every possible effort to understand the employee's sudden refusal to work evening hours. Management sought to accommodate the worker by considering a reduction in the number of evening hours normally required of a head waiter, to no avail.
4. The worker does not have the right to instantly change his working arrangements or his terms and conditions of employment of his own accord and without the Bank's consent.
5. It is most unfair and inequitable to the worker's colleagues who have been carrying his share of evening work to ensure a competent and efficient dining service.
6. As the worker is no longer willing to fulfil his head waiter duties, including evening work from time to time, the Bank was left with no alternative but to instigate disciplinary action against him in light of his attempts to change his working arrangements without the consent of the Bank. It has sought to accommodate him in a reduced role which does not have the same requirement for evening work. His salary will be reduced in light of his lesser responsibilities. The proposed action, while not ideal, is a fair and appropriate response to the situation.
Having considered the submissions of the parties in this appeal, the Court is satisfied that requirements of the position held by the claimant necessitates his availability for evening duties. On that basis the Court upholds the Recommendation of the Rights Commissioner.
The Court, however, feels that the claimant should be afforded a final opportunity of accepting this obligation to work as required by the Bank or to accept re-deployment as recommended by the Rights Commissioner.
Signed on behalf of the Labour Court
14th December, 1998______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.