INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
- AND -
Chairman: Mr Flood
Employer Member: Mr McHenry
Worker Member: Mr O'Neill
1. Appeal of Rights Commissioners Recommendation IR1015/00/GF concerning withdrawal of privilege card.
2. The worker concerned commenced employment with the Company at its store in Lucan in 1986, working approximately 25 hours per week. She has been absent on sick leave since February, 1999 and was placed on unpaid long term illness in April, 1999 following the expiry of the store's sick pay scheme.
The dispute concerns the withdrawal by management of the worker's privilege card in October, 1999. The privilege card entitled the worker to 10% discount on goods purchased at the store.
Management's position is that the worker's privilege card expired in October, 1999, and under the rules of the scheme a new card is not issued until the person on long term illness returns to work.
The matter was referred to a Rights Commissioner for investigation and recommendation. The rights Commissioner's findings and Recommendation are as follows:-
"The claimant has been absent from her employment for 17 months and is unable to say when she will return.
The card is a privilege which is granted by the Company with provisions which I consider to be fair and reasonable. When the card expires a new card is not re-issued until the person returns to work. Where special circumstances exist this matter can be dealt with on an individual basis and I am reluctant to make any recommendation which might interfere with this arrangement.
Therefore, I am recommending that the management decision be upheld."
It was indicated at the Court hearing that the worker had returned to work in the last two weeks.
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court on the 11th of September, 2000 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 23rd of November, 2000.
3. 1. The Union has a comprehensive agreement with Tesco Ireland concerning all aspects of its members' terms and conditions. It is accepted that any changes to conditions will only take place after consultation and due process. It is obvious that this has not taken place on this occasion and is, therefore, a clear breach of this agreement.
2. The worker is being treated less favourably than many of her colleagues who despite their absence have continued to enjoy the use of the privilege card. The Union has made representations on behalf of several members (Artane, Stillorgan, and Rathfarnham stores) in the past and the card has been re-issued.
3. None of the 15 rules (details supplied) which outline the qualifying criteria for use of the card stipulate that the card will not be re-issued in the event of absenteeism. Rule 3 states "you will be allowed keep the Tesco Privilege Card until you leave the Company." The worker has not left the Company's employment and, therefore, should not be denied her right to a privilege card.
4. The worker has been seriously been disadvantaged by the withdrawal of her privilege card. The manner in which it was removed was both discriminatory and contrary to natural justice. In the circumstances, the Court is requested to re-instate the worker's privilege card with a 20% discount for a period equal to the length of time it has been withdrawn.
4. 1. The rules of use and operation of the privilege card underscores the fact that it is given by the Company to employees as a privilege and not a right. All employees are made aware of the rules of use of the card. The rules of use for the privilege card clearly state that the Company reserves the right to alter the rules and regulations governing the card.
2. Company practice and precedent is that employees, whilst on long term illness, can avail of the use of the their privilege card until such time as it expires. Effectively this means that a staff member can retain the use of the privilege for a reasonable amount of time while absent from work. The Company believes this policy to be fair and reasonable under the circumstances.
3. It is unreasonable for anyone to expect to retain a benefit of employment indefinitely while absent on long term illness. The Trade Union has on previous occasions respected management's right to implement decisions in regard to the privilege card, of which one decision was that staff who remain on long term illness are only permitted to retain their privilege card until it expires.
4. The Company currently has over 260 people on long term illness nation wide. To concede this claim would have obvious repercussive effects and claims resulting in a substantial cost to the Company. Such a claim would be cost increasing and, therefore, disallowed under the cost stabilisation clauses of the relevant Partnership Agreements.
The Court having considered the written and oral submissions made by the parties upholds the Rights Commissioner's Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
4th December, 2000______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.