FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal of Rights Commissioner Recommendation No: r-138191-ir-13/JT
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner Recommendation No: r-138191-ir-13/JT. The issue concerns the worker's terms and conditions of employment. The Union contends that the worker has been employed by the Company as a Chef since the 1980's and should retain those duties and rate of pay. Management contends that although employed to carry out chef duties, the worker is employed as a General Assistant. The parties are also in dispute in relation to meal breaks and the requirement to be compliant with the Organisation of Workign Time Act, 1997 in respect of taking meal breaks.
The matter was referred to a Rights Commissioner for investigation. A Recommendation issued on the 13th February 2014 and found that the worker by virtue of accepting a pay increase under the Company/Union Agreement in 2006 effectively accepted the role and duties of a General Assistant.
On the 25th February 2014, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 23rd April, 2014.
UNION'S ARGUMENTS:
3 1 The worker is employed as a Chef. He did not accept a reclassification to the General Assistant Grade at any time during his employment and retains his rate of pay and terms and conditions of employment as a Chef.
2 The worker is seeking that Management accept that he is employed as a Chef and that he remain in that role within the Company.
COMPANY'S ARGUMENTS:
4 1 The worker while carrying out Chef duties is actually employed as a General Assistant. As a General Assistant management reserve the right to relocate the worker within the organisation in line with the needs of the business
2 The worker is currently taking his breaks in compliance with the legislation. It is not possible for the worker to continue with the previous practice of taking his meal break at the end of his working day.
DECISION:
This is an appeal by the Union on behalf of an employee against a Rights Commissioner’s Recommendation which found against his claim regarding proposed changes to his terms and conditions of employment.
Having considered the submissions of both parties the Court notes that the Appellant has retained on a ‘personal to holder basis’ his rate of pay and terms and conditions of employment associated with his role as Chef since he commenced employment in the 1980’s. Moreover, the Court notes that the Company accepts that the Appellant continues in that role.
Therefore, the Court recommends that this arrangement should be reflected in his contract of employment. Furthermore, the Court finds that the Appellant’s current meal break arrangement is in compliance with the statutory requirements under organisation of working time legislation. On that basis the Court varies the Rights Commissioner’s Recommendation accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th May 2014______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.