INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
KILLARNEY RYAN HOTEL
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Carberry
Worker Member: Ms Ni Mhurchu
1. Appeal against Rights Commissioner's Recommendation IR5628/01/MR.
2. The worker commenced employment with the Hotel in October, 1998, and is employed as a Chef de Partie. On the 31st of July, 2001, she was rostered to work from 3.00 p.m. to "finish" which would normally be 10.00 p.m. to 10.30 p.m. The worker maintains that she was due to finish at 10.00 p.m. The worker's case is that she made 2 requests for breaks to the Sous Chef but these were refused. At 10.00 p.m., as she prepared to leave, she was told by the Sous Chef that she had to stay on until her section was cleaned down. The worker replied that she was tired and hungry as she had had no break and was going home. She refused to work overtime. Following consultation between the Sous Chef and a manager, the worker was suspended with pay. A meeting took place between the parties on the 4th of August, and the worker was informed that she was being re-instated but with a final written warning. Following the events, the worker was on sick leave until May, 2002.
The Union referred the case to a Rights Commissioner in which it sought the withdrawal of the written warning, full pay to cover the period of her absence and re-imbursement of her medical expenses. The Rights Commissioner recommended as follows:
"Accordingly, I recommend that the Killarney Ryan Hotel should agree to amend the final written warning in question to a verbal warning and that the worker and SIPTU should accept this amendment in full and final settlement of this dispute."
(The worker was named in the above recommendation.) The Rights Commissioner did not find in favour of the other elements of the claim.
The Union appealed the recommendation to the Labour Court on the 14th of May, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 9th of July, 2002, in Killarney.
3. 1. The worker had already spoken to the Union because of problems with her breaks before the incident of the 31st of July. A meeting had been arranged between the parties for the 2nd of August.
2. The Sous Chef spoke aggressively with the worker when she asked to have a break. This was done in front of a number of her colleagues, making the situation worse.
3. The worker is entitled under the Organisation of Working Time Act, 1997, to a number of breaks during her work day. She was entitled to leave at 10.00 p.m. as her shift had finished.
4. The worker suffered considerable stress as a result of the incident.
4. 1. The worker asked the Sous Chef to take a break at 7.30 p.m. This was refused as it was the peak service period. She was told that she could take a break when things were quieter. However, the worker still took a 20 minute break. Her behaviour was unacceptable.
2. The worker was rostered to work from 3.00 p.m. until "finish". This usually means 10.00 p.m.- 10.30 p.m. She was told that she would be paid the appropriate overtime after 10.00 p.m. but refused to do it.
3. The Union did not go through the usual internal appeal procedures that were open to it.
Having considered the submissions of both sides, the Court concurs with the findings of the Rights Commissioner and upholds his recommendation. Accordingly, the final written warning should be reduced to the status of a verbal warning and this warning should be deemed to have expired on the 31st of October, 2001, and, therefore, no longer on her file.
The Court notes the Company's acknowledgement of her good work record and, therefore, recommends that it should look favourably at paying her sick benefit from the time she qualified under the Company's sick pay scheme. The Rights Commissioner's recommendation is hereby amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
16th July, 2002______________________
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.