Labour Court Database __________________________________________________________________________________ File Number: CD87561 Case Number: AD8772 Section / Act: S13(9) Parties: FANNING & CO. LTD - and - ITGWU |
Appeal, by the Union against Rights Commissioner's Recommendation No. CM/17698 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.
The Court so decides.
Division: Mr Fitzgerald Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD87561 THE LABOUR COURT AD7287
Section 13(9) INDUSTRIAL RELATIONS ACT, 1969
APPEAL DECISION NO. 72 OF 1987
PARTIES: E. FANNING & COMPANY LIMITED
(Represented by the Federated Union of Employers)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
Subject:
1. Appeal, by the Union against Rights Commissioner's
Recommendation No. CM/17698 concerning compensation for loss of
earnings.
Background:
2. The Company is engaged in the distribution of sugar. Prior to
October, 1986, it delivered sugar from Thurles and Carlow to the
South East region. On 1st October, 1986, all sugar wholesalers
were put on the same competitive footing by the Irish Sugar
Company. This resulted in a loss of sugar turnover mainly in the
Carlow/Kilkenny area so that it was no longer possible to collect
ex factory. The Company is now mainly engaged in the distribution
of sugar from the Waterford depot of Sugar Distributors Limited.
This has caused a loss of overtime for a driver and a helper.
This overtime was worked regularly for 15 to 20 years. The Union
estimate the loss to be between #1,500 and #2,000 per annum while
management estimate a figure of #25 per week. The Union sought
compensation of twice the annual loss. The Company offered a
token payment of #100 to each man, in line with token compensation
paid to the Company by the Irish Sugar Company. The Union
referred the matter to a Rights Commissioner who held an
investigation on 12th June, 1987, in Waterford. On 15th June,
1987, he recommended as follows -
"Compensation is not normally recommended for earnings
lost due to a recession in business or due to factors
beyond the employer's control. This case must however
be an exception because the employees held the overtime
earnings for so long, because they were regular and
because they were a significant component of their
weekly income. They therefore deserve some concession
to enable them adjust to their new income regime. The
Union's claim is excessive and the Company's inadequate
so I am recommending #750 each".
The Union appealed this recommendation to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 19th August, 1987, in Waterford.
Union's arguments:
3. (i) The sum of #750 recommended by the Rights Commissioner
is seriously inadequate in the light of the losses
involved. The two employees concerned have, over the
years, organised their budgets and arranged their
financial commitments in line with their level of
income and now find themselves with a substantial
shortfall to which they must adjust. In order to help
cushion the effects of this drop in income the Union
is claiming payment of a lump sum equal to twice the
annual loss involved.
(ii) The loss of earnings involved is significant,
amounting to between #1500-#2000 per annum in the
driver's case, and slightly less in the case of the
helper. Projected forward at current rates future
losses of between #27,000 - #36,000 to the driver will
be sustained with some adjustment to this figure for
the helper. In percentage terms there is a weekly
loss of about 20% as against former earnings. The
loss of overtime is further aggravated through the
loss of meal allowances of over #5 per week.
(iii) The Union considers that the loss of earnings has
resulted from a re-organisation of the Company's
activities and not from a loss of business brought
about by external factors.
Company's arguments:
4. (a) A decision was taken over which the Company had no
control which directly led to a severe loss of
business/income and as such the Company cannot be held
liable. This approach is in line with well
established practice on the issue of compensation for
loss of earnings. The direct loss is estimated to be
greater than #60,000 per annum. Furthermore the area
in which the claimants are employed is operating at a
severe loss.
(b) Most of the overtime in question has been unjustified
as it has been mainly due to the men's refusal to stay
out overnight and their insistence on returning to the
depot. The company has attempted to redress this
situation on a number of occasions without success.
(c) In view of the fact that the Company received token
compensation from the Sugar Company it was decided
that it should make a goodwill payment to the
employees of #100 each on the basis of fairness and
equity.
(d) When the issue was referred to a Right's Commissioner
and the recommendation provided for a sum of #750 each
the Company felt that in deference to the Rights
Commissioner process it should accept the findings.
This was done solely with a view to resolving an
industrial relations problem.
DECISION:
5. The Court, having considered the submissions made by the
parties, finds no grounds for altering the Rights Commissioner's
recommendation.
The Court so decides.
~
Signed on behalf of the Labour Court
7th September, 1987 Nicholas Fitzgerald
A.K./P.W. Deputy Chairman