Labour Court Database __________________________________________________________________________________ File Number: CD87359 Case Number: AD8765 Section / Act: S13(9) Parties: HENRY DENNY & SONS (IRL) LTD - and - ITGWU |
Appeal by the Union on behalf of a worker against Rights Commissioner's recommendation No. CM/16662, concerning compensation for loss of earnings.
Recommendation:
5. The Court, having considered the submissions made by the
parties, finds no grounds for altering the Rights Commissioner's
recommendation, which it upholds.
The Court so decides.
Division: Mr Fitzgerald Mr Heffernan Mr Devine
Text of Document__________________________________________________________________
CD87359 THE LABOUR COURT AD6587
SECTION 13(9) INDUSTRIAL RELATIONS ACTS, 1969
APPEAL DECISION NO. 65 OF 1987
Parties: HENRY DENNY & SONS (IRELAND) LIMITED
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Union on behalf of a worker against Rights
Commissioner's recommendation No. CM/16662, concerning
compensation for loss of earnings.
Background:
2. The worker concerned did an hour's overtime nearly every
morning for a number of years but continuously for a year and a
half prior to September, 1985, when it was discontinued. The
Union, on 18th November, 1985, submitted a claim that the overtime
be restored to the worker or that compensation be paid for the
loss of it. The Company pointed out that the change in work
practice was necessary to streamline production and ensure proper
levels of productivity. The Company said that it does not and
cannot guarantee overtime to any employee but that in this case it
was able to offer alternative morning overtime, on another job, to
the worker concerned. The Union maintain that this offer of
alternative morning overtime was not honoured, as the worker was
not available, whilst the Company say he refused to accept the
alternative overtime. No agreement was reached and the matter was
referred to a Rights Commissioner for investigation and
recommendation. On 18th March, 1986, the Rights Commissioner
issued the following recommendation:-
"Overtime is not guaranteed nor is it a right but if
there was a loss there could be grounds for
compensation under certain conditions. The worker
could have mitigated his loss by the alternative
offered.
I recommend that the Company make him that offer again
and that he accepts it. This would be adequate
satisfaction."
(The worker concerned was mentioned by name in the recommendation).
The Union maintain that this recommendation has not been honoured
by the Company. On 23rd April, 1987, the Union appealed the
Rights Commissioner's recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969, seeking
compensation for loss of earnings. A Court hearing took place on
29th July, 1987, in Tralee.
Union's arguments:
3. (a) In his recommendation, the Rights Commissioner
recommended that the Company offer the worker the
alternative overtime again. This was acceptable to the
Union, however, the Company has not offered it again.
(b) The Union recognises that in many cases overtime is not
guaranteed, however, if the Company requires its
employees to work overtime there is an obligation to
cushion them against any loss incurred. The Union
believes the equivalent of two year loss as
compensation is reasonable.
(c) The Labour Court has in numerous cases in the past
recommended compensation for loss of overtime (details
supplied to the Court).
Company's arguments:
4. (i) The change in practice was necessary to maintain the
viability of the plant and was part of ongoing
re-organisation necessary to enable the Company to
compete in a competitive industry.
(ii) The Company does not and cannot guarantee overtime to
any employee. In this particular instance it was
possible to offer alternative overtime to the worker
concerned, but as he refused to accept the offer there
can be no justification for any compensation.
(iii) The level of overtime worked by the worker concerned
for the remainder of the working year and during the
currency of the present year has remained at a
reasonable and consistent level. This is especially so
when complaints by the Union regarding excessive
overtime being worked is taken in account.