SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SHAW & SONS LTD T/A SHAWS DEPARTMENT STORES
- AND -
(REPRESENTED BY MANDATE)
Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr McCarthy
1. Appeal of Adjudication Officer's Decision No: ADJ-00001833.
2. This case concerns a claim that the worker be restored to "management cover" and "key-holding" functions.
The matter was referred to an Adjudication Officer for investigation and decision. On 15 September 2016 the Adjudication Officer issued the following decision:-
Based on the evidence presented by both parties, I find that the complaint is well-founded.
I order the Respondent to reinstate the Respondent (sic) to the supervisory role that she previously held. For avoidance of any doubt, this role includes key-holding duties and supervisory duties for Sunday working. I also order the Respondent to pay the Complainant all loss of earnings due to her as a result of the actions of the Respondent in discontinuing her role as a key-holder and removing her from the roster for Sunday working. These payments must be made to the Complainant within 6 weeks of this decision.
The Employer appealed the Adjudication Officer's decision to the Labour Court on 24 October 2016 in accordance with Section 13(9) of the Industrial Relations
Act, 1969. A Labour Court hearing took place on 14 December 2016.
3. 1. The Worker should be reinstated to her supervisor position with all its attendant rights and responsibility that the role consisted of prior to her demotion.
2. The Rights Commissioner did not qualify his decision by stating that the Worker should be given a lesser role than she had prior to her being demoted as has now happened.
3. Labour Court recommendation AD1582 upheld the Rights Commissioner’s recommendation and both were clear that the Worker should not suffer any financial loss arising from her demotion.
4. 1. Arising from Labour Court recommendation AD1582 the Worker was reinstated to the position of supervisor and remunerated accordingly effective from 11 August 2015.
2. Following her reinstatement as supervisor, the company did not require the Worker to resume carrying out "management cover" and "key holding" functions. Management cover/key-holding functions are outside of the scope of supervisor’s terms and conditions of employment.
3. It is legitimate for the company, based upon its assessment, to be able to determine who is in overall charge of its premises, stock and personnel on any given day.
The Court has given careful consideration to the written and oral submissions of the parties.
The Court notes the history of this matter and the various efforts made to achieve resolution. The Court notes that the Claimant was demoted in December 2014 and did not actually function as a supervisor again until December 2015 albeit that she had been re-instated with effect from August 2015 following Labour Court Recommendation number AD1582.
The Court notes and accepts the employer’s contention that it should be able to determine who is in overall charge of its premises, stock and personnel on a given day. Nevertheless it is for the Court in the within case, on the basis of the submissions made and the information made available to the Court at its hearing, to form a judgement as regards the appropriate reasonable resolution in finality of the matter.
The Court cannot conclude that the nature of events on 6thNovember as described to the Court were such as to justifiably undermine totally the confidence the employer has in the claimant to carry out "management cover" or "key –holding" duties.
In those circumstances the Court recommends that the Claimant be restored to "management cover" and "key-holding" duties with effect from 1stJanuary 2017 and that the employer should make a payment of €1,404 to her in respect of the period from December 2015 to 31stDecember 2016, being the period during which she functioned as a supervisor but was not assigned or requested to perform these duties.
The Court so recommends.
Signed on behalf of the Labour Court
19 December 2016______________________
Enquiries concerning this Decision should be addressed to Michael Neville, Court Secretary.