Labour Court Database __________________________________________________________________________________ File Number: CD86700 Case Number: AD86105 Section / Act: S13(9) Parties: NEC IRELAND LTD. - and - ITGWU |
Appeal by the Company against a Rights Commissioner's recommendation concerning position and level of earnings of a worker.
Recommendation:
7. The Rights Commissioner took account of the swings and
roundabouts associated with the loss of earnings incurred by the
claimant in the restructuring which combined the De-flash and
Plating operations. In the particular circumstances and
background of this case, the Court upholds the Rights
Commissioner's Recommendation. The Court notes that the maximum
appraisal payment which the claimant may earn will be inclusive of
the Rights Commissioner's award.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD86700 THE LABOUR COURT AD105/86
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 105 OF 1986
PARTIES: NEC IRELAND LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Company against a Rights Commissioner's
recommendation concerning position and level of earnings of a
worker.
Background:
2. The Union says that in 1979 the worker, while working in the
sand blasting area of the plant, was changed from a 3 shift to a 2
shift roster. The difference in shift premium was #4 but the
worker was given a maintenance allowance of #4 per week which
maintained his earnings at the previous level. The sand blasting
operation was abolished by the Company in 1983 and was later
replaced by another process referred to as 'chemical deflash'.
The Union says that the worker's #4 allowance was withdrawn at the
same time.
3. Following the introduction of the chemical deflash department
in 1984 the Company appointed two lead operators to this area, one
of whom was the worker concerned. This position involved a
payment of #3 per week in addition to the basic rate. In 1985 a
second process was introduced in the same area, namely plating of
the lead frames after deflashing. Following the introduction of
the plating process the Company decided to create two new
positions of 'operating group leader' to cover both plating and
deflash areas. The worker was an unsuccessful candidate for one
of these positions. Arising from the introduction of the two
group leader positions the position of lead operator was abolished
from January, 1986. Accordingly, the #3 differential associated
with this position was withdrawn from the worker but the Company
decided to continue its payment to him until 1st April, 1986. He
is currently employed as a process operator in the plating and
deflash area on a basic pay of #122.50 per week together with
appraisal increments totalling #32.00 per week and a 16.66% shift
premium. Appraisal increments are paid by the Company annually to
operators, based on work performance. The maximum which can be
earned at present in respect of appraisal increments is #42. An
increment ranges from #2 - #4 (max) depending on performance.
4. The Union, on behalf of the worker concerned, served a claim
on the Company that the worker was unfairly deprived of the
position of group leader and the higher rate of earnings
associated and also sought compensation for the loss of additional
earnings associated with the position of lead operator. The
Company rejected the claim and the matter was referred to a Rights
Commissioner who, having investigated the dispute, issued the
following findings and recommendation:-
"Findings:
I can understand that the worker believes he has
been unfairly deprived of position and earnings.
Obviously the Company has to hold an open
competition for any promotional outlets and it is
no reflection on any candidate who is not
successful. In addition the worker has lost a
premium position through a restructuring of a
successful process. I believe that this merits
some consideration.
"Recommendation:
I recommend that the Company offers, and the worker
accepts, one maximum annual appraisal increment on
a red letter basis."
(The worker was referred to by name in the Rights Commissioner's
Recommendation).
The recommendation was appealed by the Company to the Labour
Court, under Section 13(9) of the Industrial Relations Act, 1969.
The Court heard the appeal on 25th November, 1986, in Navan.
Company's arguments:
5. (a) The appraisal scheme in the Company provides all
operators with the opportunity to accumulate
additional basic earnings up to #42.00 per week.
These extra earnings are linked to the Union
undertaking to co-operate fully in taking the steps
necessary to maintain competitiveness. The existence
of this scheme is in itself compensation, at least in
part, for losses or inconvenience arising from
restrictions.
(b) The appropriate procedure in cases like this is to
continue payment of the premium payment being lost for
a suitable period. For this reason, the worker was
paid his lead operator's allowance of #3.00 per week
from 1st January, 1986, to 31st March, 1986, even
though the post had been abolished.
(c) When appointed lead operator in 1984, the worker was
aware that this appointment was on a trial basis. He
could have no expectation therefore, that the position
and allowance of #3.00 would continue indefinitely.
(d) The position of lead operator ceased, in fact, was
redundant at the end of 1985, less than 2 years after
it was introduced.
(e) In continuing the #3.00 payment for 3 months following
the cessation of the lead operator's position, the
Company sought to minimise the impact of the loss by
paying it until such time as the next wage round
increase became operative.
(f) Three months equivalent of the loss is reasonable.
There are numerous Labour Court recommendations where
the Court has not recommended any compensation for
loss of earnings.
(g) To award compensation in excess of the loss and on a
permanent ongoing basis as per the Rights
Commissioner's Recommendation is totally unreasonable
and unacceptable.
(h) The worker was not appointed to one of the 2 newly
established positions of group leader as he was not
considered suitable by the Company. There can be no
element of compensation in respect of the worker's
failure to be promoted to a new position. Promotion
is on the basis of suitability for a specific
position. The fact that the worker's previous
position became redundant in no way entitled him to
promotion. This is a totally separate matter and
cannot be considered in looking at compensation for
loss of earnings arising from his old position.
(i) Given that the loss of earnings is minimal - #3.00 per
week; that the #3.00 was held for less than 2 years
and on the understanding that it was only on a trial
basis, the Company's offer of 3 months' equivalent of
the loss is reasonable.
(j) The Rights Commissioner's recommendation should be
overturned on the grounds that the compensation is in
excess of the loss and would be paid on an ongoing
basis.
(k) If the Court considers that the appraisal system of
payment and the Company's proposal of 3 months'
equivalent of the loss are not sufficient in this
case, then the Company requests that any award be
structured so as to provide a clear guideline for
similar cases which may arise in the future.
Union's arguments:
6. (i) The worker has been treated unfairly in this case.
Not alone did he not secure the position of group
leader but as a consequence of the introduction of
that position the position of lead operator has been
abolished with the consequent financial loss to the
worker.
(ii) When the worker lost the #4 maintenance allowance
associated with the sand blasting operation in 1983 he
took no action on the matter following assurances from
the production and personnel managers that his future
prospects were good in the deflash department.
(iii) The worker was advised by the Company that he failed
to get appointed to the position of group leader
because of his attitude. However, the worker has a
good record with the Company and his appraisal results
under the incremental system confirm this.
Furthermore, the Union is unaware of anything on the
worker's file which would deem him unsuitable for the
position of group leader, in relation to work or
attitude.
(iv) The Company refers to the worker's loss of position as
coming under a technical redundancy situation.
However, agreements with the Company rule out
redundancies.
(v) In accordance with a letter of clarification received
from the Rights Commissioner of his recommendation the
maximum appraisal increment of #4 awarded will
disappear when the worker reaches the appraisal
increment scale maximum. Therefore, the contention by
the Company that payment of this increment would be
on-going for the future is not valid.
(vi) Given the worker's losses by way of position and
earnings his minimum earnings should be maintained at
their former level by the Company.
DECISION:
7. The Rights Commissioner took account of the swings and
roundabouts associated with the loss of earnings incurred by the
claimant in the restructuring which combined the De-flash and
Plating operations. In the particular circumstances and
background of this case, the Court upholds the Rights
Commissioner's Recommendation. The Court notes that the maximum
appraisal payment which the claimant may earn will be inclusive of
the Rights Commissioner's award.
The Court so decides.
~
Signed on behalf of the Labour Court
18th December, 1986 Nicholas Fitzgerald
T.McC./P. Deputy Chairman