Labour Court Database __________________________________________________________________________________ File Number: CD87536 Case Number: AD8783 Section / Act: S13(9) Parties: MIDLAND INTERNATIONAL LTD. - and - ITGWU |
Appeal by the Union against Rights Commissioner's recommendation No. ST59/87.
Recommendation:
5. The Court decides that the Rights Commissioner's
recommendation be upheld and implemented by the Company now giving
the two claimants a guarantee that service from the date of their
retirement from the staff pension scheme will be taken into
account when they join the new pension scheme.
Division: CHAIRMAN Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD87536 THE LABOUR COURT AD8387
INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 83 OF 1987
Parties: MIDLAND INTERNATIONAL
(Represented by the Federated Unions of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal by the Union against Rights Commissioner's
recommendation No. ST59/87.
Background:
2. There are two workers concerned in this appeal. They were
appointed to staff positions on 1st November, 1979 and joined the
staff pension scheme on that date, contributing 5% of pensionable
salary. As a result of rationalisation in the Company both
workers were demoted, one in February, 1985 and the other on 31st
August, 1986. Each was paid a lump sum of #3,000 in compensation
for the loss of earnings potential. Their membership of the
Pension Scheme was terminated from November, 1985 and August, 1986
respectively. The Union claimed that the workers should be
allowed to remain in membership of the scheme on a personal basis.
The Company rejected this claim. As no agreement could be reached
the matter was referred to a Rights Commissioner who recommended
as follows:-
"I am reasonably happy that when the two men concerned were
being demoted that they were aware that a number of
privileges which they previously enjoyed would be lost to
them. Some of these were never mentioned in discussions yet
they were lost and accepted as such. For instance time off
without loss of pay for domestic reasons. "Signing in"
instead of clocking in, which floor workers must do. The
fact that pension was not mentioned at the discussions, in
these circumstances cannot be validly claimed as a reason
for a subsequent claim. Whilst I accept the Union point
that the expression "in full and final settlement of all
claims" was not used by the company in correspondence or
otherwise on the matter, I have no doubt what the clear
intention was. Accordingly I recommend that the claims
fail. However, I would draw the company's attention to its
admitted commitment to a general pension scheme, and the
recognition of previous service therein, and being conscious
of the Union's stated intention at the hearing not to use
this case as a precedent, I would recommend that the
parties, without prejudice, examine the possibilities of an
accommodation at local level".
On 3rd July, 1987 the Union appealed this Recommendation to the
Labour Court. The Court heard the appeal on 30th September, 1987
in Cavan.
Union's arguments:
3. (i) The Union appealed the recommendation because there was
no progress in discussions on the suggested
"accommodation at local level" on the issue in dispute.
(ii) The matter of pension rights was not discussed at any
time when compensation was being negotiated. Neither
was the term "full and final settlement" used in the
context of the #3,000 compensation paid to the workers.
This figure referred to loss of wages only. In the
case of the first worker there was no reason to assume
that he should automatically lose his pension rights.
Indeed, he remained in the scheme for eight months
after his demotion.
(iii) There is no legal reason why these workers cannot be
included in the pension scheme. The Union presumes
that it is not a financial consideration which is
preventing the Company from allowing these workers to
remain in the scheme, especially as they are prepared
to pay their contribution.
(iv) The "accommodation" referred to by the Rights
Commissioner would be acceptable if it meant that the
workers were restored to good standing in the existing
staff pension scheme pending agreement being reached on
the general scheme which has been agreed to in
principle.
(v) Concession of this claim would not be precedent setting
nor would it lead to any repercussive claims.
Company's arguments:
4. (a) In respect of both workers the Company paid
compensation as full and final settlement with regard
to the loss of status and loss of remuneration.
Pension is firmly established as being part of
remuneration.
(b) While the Company accepts that pension rights were not
specifically mentioned, neither were other benefits
which were lost by the workers as a result of their
loss of status.
(c) The first worker's original intention was to recoup the
money he had paid into the scheme. This was not
possible. It was not until the second worker was
demoted that the question of remaining in the scheme
was raised.
(d) The Company considers that it acted fairly with respect
to these workers.
(e) The Company does intend to introduce a general pension
scheme. However, present circumstances have deferred
its discussion.
DECISION:
5. The Court decides that the Rights Commissioner's
recommendation be upheld and implemented by the Company now giving
the two claimants a guarantee that service from the date of their
retirement from the staff pension scheme will be taken into
account when they join the new pension scheme.
~
Signed on behalf of the Labour Court
John M Horgan
19th October, 1987 --------------
R.B./U.S. Chairman