LCR11449

Subject:
Claim for compensation for loss of privilege days.

Recommendation:
7. The Court finds that the claimant in this case does not
qualify for the payment of compensation in accordance with the
conditions previously recommended by the Rights Commissioner and
upheld by the Court.

The Court does not therefore recommend concession of the claim.

Division: CHAIRMAN Mr Collins Mr Devine

Text of Document__________________________________________________________________

CD87424 THE LABOUR COURT LCR11449
CC861767 INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
RECOMMENDATION NO. LCR11449


Parties: DUBLIN CORPORATION

and

IRISH MUNICIPAL EMPLOYEES' TRADE UNION


Subject:

1. Claim for compensation for loss of privilege days.

Background:

2. This claim concerns a worker employed in the waterworks
department of the Corporation who is losing his privilege days at
Christmas and Easter. In 1984 the Corporation removed privilege
days from the workers in the waterworks department. In June, 1985
the Corporation offered the same compensation as had been applied
in the case of workers in the paving section. In 1981 a Rights
Commissioner had investigated a claim from workers in the paving
section who had lost privilege days and issued a recommendation as
follows:

"5. A practice, albeit a bad practice, establishes itself
as a right through long and unchallenged usage. There
is such a right in this case but, because of the
obvious repercussive effects if it were to be preserved
as it is, it should be bought out.


6. I therefore recommend a settlement of two and a half
days' pay each for employees in the Paving Section
Depot, Christchurch Place, who are losing the privilege
but who enjoyed it for five out of the seven Easters
from 1974 to 1980 inclusive".

Following an appeal the Labour Court subsequently upheld the
Rights Commissioners Recommendation (Appeal Decision Number 57 of
1982 refers).

3. On 21st May, 1986 the Corporation outlined its offer of
compensation and listed the workers in the waterworks department
to whom it would apply. The Union claimed the inclusion of two
timekeepers in the offer of compensation. The Corporation
rejected the claim.

4. On 30th October, 1986 the matter was referred to the
conciliation service of the Labour Court. Conciliation
conferences were held on 10th December, 1986 and 8th April, 1987.
However, no agreement was reached and on 25th May, 1987 the case
was referred to the Court for investigation and recommendation. A
Labour Court hearing was held on 4th September, 1987. At the
Court hearing the Union stated it only wished to pursue its claim
in respect of one of the workers in the waterworks department as
it considered the case of the other worker was likely to be
resolved.

Union's arguments:

5. (i) The worker should be entitled to compensation as he
only fails by a few months to meet the criteria set out
in the Rights Commissioner's Recommendation.


(ii) The Union did not fully accept the application of the
paving section formula to the waterworks staff and
requested an offer in writing to enable the Union to
ascertain how it would apply and to whom. The Union
immediately made representations for the worker's
inclusion.

(iii) The Union first suggested that the worker get the full
2.50 days compensation. When the Corporation rejected
this the Union suggested that he be dealt with on a pro
rata basis. There was no response from the
Corporation.

(iv) The worker is entitled to compensation, his case should
be dealt with in the spirit of the Rights Commissioners
Recommendation. He enjoyed the privilege days for a
long period, unbroken and unchallenged.

Corporation's arguments:

6. (a) The decision of the Labour Court in relation to the
workers in the paving section has been accepted and
applied to other workers in the Corporation.

(b) The Corporation must act with certainty, be equitable
and be seen to be equitable to all its employees. It
is reasonable that, where similar circumstances apply,
the same criteria, which were applied in the road
maintenance (paving) section following the decision of
the Labour Court, be applicable. Otherwise, the
Corporation would be seen to be inequitable and
inconsistent in its dealings with its employees.


(c) The delay in confirming the details to the trade unions
arose due to the fact that the timekeepers in the
waterworks section failed to maintain proper and
adequate records of leave taken. Timekeepers are the
employees who have the primary responsibility in such
matters.

(d) The financial situation of the Corporation is extremely
serious. The level of finance available to the
Corporation in 1987 is #10.4m less than would be
necessary to maintain the services at the level
provided in 1986. Accordingly, a number of schemes
have had to be postponed and overtime, which in some
cases had existed for years, abolished except in cases
of extreme emergencies. In the circumstances, the
payment of compensation for the correction of an error
which was enjoyed by the two employees for a short
period of time is unwarranted.

(e) The worker, whose case the Union is pursuing, did not
have five years' service in the waterworks section at
the time the error was corrected. The information
produced concerning the other worker does not support
the case that he should be granted compensation.


RECOMMENDATION:

7. The Court finds that the claimant in this case does not
qualify for the payment of compensation in accordance with the
conditions previously recommended by the Rights Commissioner and
upheld by the Court.

The Court does not therefore recommend concession of the claim.
~

Signed on behalf of the Labour Court

John M. Horgan

_________________________
Chairman
7th October, 1987.
T.O'M./J.C.