INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
TESCO IRELAND LIMITED
- AND -
(REPRESENTED BY MANDATE)
Chairman: Mr McGee
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal Against Rights Commissioner's Recommendation R-031658-IR-04/GF.
2. The appeal concerns a worker who is employed as a sales assistant in the Deli area of the Company's Longwalk store in Dundalk since June, 1995. She has acted up in the past in the post of charge hand to cover annual leave, holidays, sick leave etc,. In May, 2004 the position of Counters Manager was advertised and the claimant applied for the post. She was unsuccessful in her application. Subsequently the HR Manager had a meeting with the claimant to provide feedback from her recent interview and explained the reasons why she was unsuccessful in her application for the position of Counters Manager.The Union claimed that the worker was unfairly treated. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 20th April, 2005 the Rights Commissioner issued his recommendation as follows;
"I have given this case careful consideration and I must come to the conclusion that she had acted in the postilion as Manager from April and had fulfilled all the functions without any difficulty and in my opinion her refusal to engage in a training programme should not mitigate against her. However, recognising reality is an important factor and I believe she should be encouraged to participate in the future. In the meantime, she should be considered for the post of Counters Manager as soon as one becomes available".
On the 12th May, 2005 the Union appealed the recommendation to the Labour Court. The Court heard the appeal on the 28th September, 2005.
3. 1. Since 1997 the claimant has been the appointed replacement for the Deli Chargehand when he was on leave etc, and received a 7.5% differential for same . From April, 2004 to 27th September, 2004 she acted as Counters Manager. She carried out all the functions associated with the positions and received praise from Management for the way she performed her duties. There were no complaints regarding the claimant's work from Management, staff or customers.
2. The Company did not adhere to the "Meat and Deli proposals" of February, 2003 in relation to its treatment of the claimant.
3. The interview held on 20th May, 2004 in which the claimant participated was not fair and reasonable and the Union disputes the scoring given to the claimant on the "interview summary sheet".
4. The claimant continued in the Counters Manager position again until the 27th September, when the post was filled.
5. The Union does not accept Management's contention that the claimant did not get the appointment because she did not participate in the MMA training course . Other workers who had not completed this course were appointed to Manager posts.
6. Since the Rights Commissioner's hearing the claimant has acted up for a further ten weeks as Counters Manager.
7. The Union is seeking the claimant be appointed as Counters Manager and that she be awarded compensation for monies lost.
4. 1. The Company ensured at all times that the agreed and established "Meat and Deli Agreement 2003" i..e. the recruitment process, and specifically its terms regarding the issue in dispute, were adhered to throughout the process.
2. The claimant was working in a relief capacity from April to September, 2004 and that role was different both in responsibilities and contract to the Section Manager role.
3. The claimant failed to meet the requirements of the Counter Manager role as set out in the advertisement of Friday, 14th May, 2004.
4. Even if the claimant had the necessary skills to be a Section Manager, she confirmed to Management that she would not accept the full terms of the Section Manager contract.
5. The MMA programme would help the claimant to gain the skills she needs. MMA is a structured development programme that would assist staff in developing the necessary skills required to become a Section Manager.
The Court has considered the oral and written submissions in this case .
It is the view of the Court that the claimant deserves consideration for her experience to now as well as for her disappointment with the nature and conduct of the interview process.
The Court allows the appeal and varies the Rights Commissioner's Recommendation as follows:
- the claimant to be paid a sum of €1,250 in full and final monetary settlement of her claim
- the claimant to agree to engage as early as possible in the MMA programme.
- the Company to keep her position under review as indicated by the Rights Commissioner, with a view towards assisting her future promotion as envisaged by the HR Manager in the claimant's post-interview de-briefing.
Signed on behalf of the Labour Court
18th October, 2005______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.