INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
Chairman: Mr Flood
Employer Member: Mr Pierce
Worker Member: Mr Rorke
1. Appeal against Rights Commissioner's Recommendation 300/98/CW.
2. The dispute concerns the Union's claim that an employee is entitled to the cleaner's rate of pay for 26 months between November, 1995, and January, 1998. The Union claims that the worker was employed as a cleaner in November, 1995, but was paid the sales assistant rate of pay. The Union submitted a claim on her behalf in November, 1997. In January, 1998, the worker was offered a flexi full-time sales assistant position. She had previously worked part-time. The Company contends that the worker was employed as a sales assistant in 1995 and that a certain amount of cleaning is part of all sales assistants' duties. The issue was referred to a Rights Commissioner for investigation. He issued his recommendation on the 28th of July, 1998, as follows:-
"I recommend that the Company offers and the worker accepts the sum of £300 in settlement of this dispute".
(The worker was named in the Rights Commissioner's recommendation).
Following receipt of the recommendation in October, 1998, the Union appealed the recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 16th of March, 1999, the earliest date suitable to the parties.
3. 1. The worker was employed by verbal contract as a cleaner in November, 1995. She and two other cleaners cleaned toilets, floors, the canteen, fridges, shelves and the compactor on a daily basis.
2. The worker was told by local management in November, 1997, that she and another cleaner were officially employed as sales assistants as only one cleaner was permitted per branch.
3. The worker performed checkout duties for a total of four weeks during her first two years with the Company. However, following her appointment to a full-time position in January, 1998, she was given the full range of sales assistants' duties and her cleaning duties were terminated.
4. The Company offered to pay the worker £196.56 for carrying out "some of the duties of the cleaner of the store from time to time e.g. periods of holidays, sickness, etc.". The worker is entitled to the appropriate and agreed rate of pay for 26 months, which, the Union estimates, is approximately £2000.
4. 1. In 1995 the worker was offered a job as a sales assistant on the appropriate rate of pay. She is now on the third point of the incremental scale. She accepted the job, the rate and the duties. All sales assistants perform a range of duties which include cleaning and hygiene matters and assisting colleagues from time to time.
2. The worker did not raise her grievance until she had worked in the position for two years. She, therefore, could have had no misunderstanding about her job. It is unreasonable to raise the issue after two years.
3. The worker was trained as a sales assistant when she was first employed and needed no further training when she was assigned to a full-time position. She operated a checkout on numerous occasions and has an ongoing liability to do so. The worker refused compensation for the occasions she worked as a cleaner in the absence of the full-time cleaner. There is no case for full retrospection of pay.
The Court, having considered the written and oral submissions made by the parties, believes that this case would be best satisfied by the Rights Commissioner's recommendation being amended as follows:-
The Company to offer and the claimant to accept £600 in settlement of this dispute.
The Rights Commissioner's recommendation to be amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
23rd March, 1999______________________
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.