Labour Court Database __________________________________________________________________________________ File Number: CD8835 Case Number: AD8811 Section / Act: S13(9) Parties: WESSEL IRELAND LIMITED - and - FEDERATED WORKERS' UNION OF IRELAND |
Appeal, by the Union, against Rights Commissioner's Recommendation CM17,661 concerning compensation for loss of overtime earnings.
Recommendation:
5. In the circumstances outlined the Court finds no justification
for altering the Rights Commissioner's findings.
The Court accordingly rejects the appeal.
Division: Ms Owens Mr Shiel Mr Devine
Text of Document__________________________________________________________________
CD8835 APPEAL DECISION NO. AD1188
INDUSTRIAL RELATIONS ACT, 1969
SECTION 13(9)
PARTIES: WESSEL IRELAND LIMITED
(REPRESENTED BY THE FEDERATED UNION OF EMPLOYERS)
AND
FEDERATED WORKERS' UNION OF IRELAND
SUBJECT:
1. Appeal, by the Union, against Rights Commissioner's
Recommendation CM17,661 concerning compensation for loss of
overtime earnings.
BACKGROUND:
2. This appeal concerns a worker employed by the Company as a
chargehand working a permanent night-shift. Up to December, 1986
the worker was required to attend for work at 9.30 p.m., a half
hour before his normal shift, to carry out security duties at the
factory gateway. The Company discontinued the practice in
December, 1986. The worker who was paid double time for this
overtime suffered a loss of earnings of approximately #1,300.
The Union claimed compensation of #2,600, on behalf of the worker,
for loss of overtime earnings.The Company rejected the claim. The
matter was referred to a Rights Commissioner for investigation and
recommendation. On 9th April, 1987 the Rights Commissioner issued
his recommendation as follows:-
The #4,082 was for loss of guaranteed overtime which this
half hour was and although it continued for 13 months after
the Company's disbursement it was still bought out.
Consequently no further compensation is due to the worker.
The Union appealed that recommendation to the Labour Court in
accordance with Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 23rd February, 1988.
UNION'S ARGUMENTS:
3. 1. At the Rights Commissioner's hearing the Company argued
that the worker had received compensation of #4,082 in
November, 1985 for loss of guaranteed overtime including the
half hour early start. Consequently, no further compensation
would be paid and the continued enjoyment of the half hour
start-up to December, 1986 was a bonus for the worker. The
Union rejected this argument on the grounds that no evidence
was produced to sustantiate the claim by the Company that the
1985 buy-out included compensation for the workers half hour
early start.
3. 2. Because of the complexity of the 1985 buy-out it was not
possible to determine if the Company's claim was accurate or
not. As the half hour early start was not mentioned in any of
the documents relating to the 1985 buy-out and as all other
overtime affected by that agreement was discontinued
immediately, the onus rested with management to prove its
assertion. This it did not do! Consequently, the Rights
Commissioner acted in error recommending as he did.
3. The claim for twice the annual loss is itself not
contentious should it be recommended that the 1985 agreement
is not relevant to this issue. However, should the Court
decide that neither party is capable of establishing precisely
what was and was not covered by the 1985 agreement, perhaps a
solution to this problem might lie in awarding the worker 50%
of his claim, i.e. #1,300.
COMPANY'S ARGUMENTS:
4. 1. The Company bought out all guaranteed overtime which
ceased on 1st December, 1985. The worker accepted #4,082 in
compensation for the buy-out of his guaranteed overtime.
2. The buy-out of guaranteed overtime was in respect of the
loss of overtime in the future from 1st December, 1985
onwards. The worker is now claiming further compensation for
loss of overtime from the end of 1986. This clearly makes a
nonsense of the original agreement.
3. The worker was fortunate to have overtime for a year after
the buy-out agreement. In reality he was compensated for
future loss and yet suffered no loss for the first year
following the agreement.
4. The Company cannot consider any further compensation for
the worker it has already paid out in excess of #100,000 to
buy-out guaranteed overtime.
5. The worker has been treated identically to the other 43
employees in respect of his overtime buy-out, and more
favourably in that he had overtime available after he was
compensated for the loss of the overtime.