INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
MARKS & SPENCER (IRELAND) LIMITED
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY MANDATE)
Chairman: Mr Duffy
Employer Member: Mr Keogh
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Recommendation IR7373/02/FL.
2. The worker was employed by the Company in May, 2000, as a Sales Advisor in what is known as the evening team. In February, 2001, one of the existing relief Deputy Supervisors advised the worker that there was a vacancy for a relief Deputy Supervisor. The worker claims that she advised that her duties would be the same as the Deputy Supervisor i.e. that she would act as Deputy Supervisor for three nights per week.
The worker applied for the job on the understanding that it would involve acting as Deputy Supervisor for 3 nights per week - she was successful and was offered the post. After the interviews were held, it emerged that another job had become vacant and that the Company had filled both vacancies based on the outcome of the interviews.
The matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's recommendation is as follows:-
"I recommend that the employer pay €3,000 compensation to the claimant as compensation for the losses and the distress she has suffered.
I further recommend that she be offered a rate of pay, which would reflect the pay she would have received had she been "standing up" for three nights per week, and that this rate be particular to her.
Alternatively, both sides may negotiate a lump sum, which would buy out her entitlement to the Relief Deputy Supervisor's rate for three nights per week, on condition that she would return to work in her position as a Sales Advisor.
If the claimant should decide not to return to work, this offer of an enhanced rate of pay or a lump sum may be withdrawn."
On the 27th of March, 2002, the employer appealed the Rights Commissioner's recommendation to the Labour Court under Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th of July, 2002.
3. 1. The worker applied for promotion to the position of relief Deputy Supervisor and was successful in her application. This entailed remaining as a sales advisor and filling in as a relief deputy supervisor when required.
2. At no time did the Company offer the worker a guaranteed three evenings per week to act in the role of relief deputy supervisor. No such arrangement existed/exists within the Company.
3. The Company investigated and addressed the grievance regarding the worker's misunderstanding of the job. A very generous offer of two guaranteed evenings, (out of five) acting as the relief deputy supervisor, was made by the Company.
4. 1. The vacant position of relief Deputy Supervisor should have been advertised either on the notice board or by way of memo to the evening team. To advertise the position verbally was a serious error on the Company's part.
2. When the second vacancy became available, again this vacancy should have been in writing. If as it has now been proven it was a different vacancy from the first, the evening team including those who had already put their names forward for the first position should have been told exact details of the two different positions.
3. At interview full details of the job role, hours, etc. should have been available to the worker.
4. It was not appropriate for a relief Supervisor to assume to have the authority to speak to the worker regarding her contract for the position she had successfully achieved as relief Supervisor.
5. The confusion regarding who had what position within the evening team is entirely the Company's fault. Nobody was informed that the relief Supervisor's position had changed, her new position had not been advertised.
Having regard to all the circumstances of this case, the Court regards the approach adopted by the Rights Commissioner as reasonable. The Court does not, however, believe that awarding the claimant an ongoing payment on a red-circled basis is a viable option. Rather, compensation calculated by reference to the agreed formula based on the Relief Deputy Supervisor's rate for three nights per week should be paid.
The Court also upholds the Rights Commissioner's recommendation that the employer pay €3,000 compensation to the claimant for the reasons mentioned by the Rights Commissioner.
Subject to the modification referred to above, the Rights Commissioner recommendation is affirmed.
Signed on behalf of the Labour Court
1st August, 2002______________________
Enquiries concerning this Decision should be addressed to Helena McDermott, Court Secretary.