Labour Court Database __________________________________________________________________________________ File Number: CD88270 Case Number: LCR11861 Section / Act: S67 Parties: BUS EIREANN - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Claim on behalf of one porter (now retired) for payment of full compensation for loss of rostered overtime.
Recommendation:
6. The Court feels that the consideration which the Rights
Commissioner applied in the case cited by the Union should apply
equally in this case. Accordingly the Court recommends concession
of the Union's claim for the payment made under L.C.R. 11225.
Division: CHAIRMAN Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD88270 RECOMMENDATION NO. LCR11861
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: BUS EIREANN
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Claim on behalf of one porter (now retired) for payment of
full compensation for loss of rostered overtime.
BACKGROUND:
2. Following proposals from the Company to change rosters in Bus
Aras, the Union received a letter from Management dated the 22nd
January, 1987, which stated inter alia that
"the Company is prepared to recognise the re-organisation
factor involved in the proposed changes and to offer
compensation for loss of rostered overtime, Sunday duty and
public holiday working where applicable, at the rate of twice
the annual loss subject to the £4,000 maximum limit. The
amounts payable to the various groupings involved are as
follows:-
Chargehands (1) £4,000.00
Parcels Assistants (Week day rest) (4) £2,524.06
Parcels Assistants (Sunday rest) (11) £1,989.34
Porters (Week day rest) (11) £ 836.38
Porters (Sunday rest) (6) £ 458.14
Porters (Information kiosk (2) £1,970.16
The above amounts, subject to checking, will be paid as soon
as possible following receipt of your acceptance."
3. All the workers concerned were paid the amounts specified in
the letter of the 22nd January with the exception of the claimant
who was due to retire on the 27th February, 1988, and who was paid
£281 (for loss of earnings for the period 11th January, 1987 to
the 27th February, 1988). The claimant expected to be paid
£458.14 but the Company stated that the amount paid to him was the
proper one as his expectations of earnings would have ceased on
the 27th February, 1988. Local level discussions failed to
resolve the issue and on the 16th December, 1987, it was referred
to the conciliation service of the Labour Court. No agreement was
reached at a conciliation conference held on the 5th February,
1988 and both parties sought to have the case referred to the
Labour Court on the 1st March. A Court hearing was held on the
29th April, 1988 (earlier suitable date).
UNION'S ARGUMENTS:
4. 1. Rights Commissioner's Recommendation No. CM/16,791 (issued
in June, 1986) dealt with an almost identical case in C.I.E.
In that case the Rights Commissioner recommended as follows:
"the whole philosophy of compensation for loss of earnings
is to cushion a person against a loss for the remainder of
his working life. A person retiring soon has not the same
potential loss of earnings so some modification would
normally be warranted.
This is an unusual situation in that the claimant is the
only one of seventeen to get less than the agreed amount
and the Union included him in their negotiations and
assumed with good faith, that he would be getting the same
as the others. I believe therefore that the Company ought
to make an exception for him and concede the £924."
2. The Court will notice that the Company's letter of the
22nd January, 1987 provides for the amounts of compensation to
be payable on a "various groupings" basis rather than on an
individual basis. The Union believes that this was a package
deal and if the claimant was not paid the full amount that the
savings would have to be passed on to the other participants
in the package who suffered a bigger loss.
3. This present claim is absolutely identical to the one
mentioned above and the claimant is therefore fully entitled
to the additional £177 compensation and the Court is requested
to recommend accordingly.
COMPANY'S ARGUMENTS:
5. 1. It has traditionally been Company policy, and in fact is
clearly outlined in agreements with the Unions which govern
the payment of compensation for loss of earnings between the
Company and its employees, that in no case may the Company
exceed in payments what an employee would have earned had
he/she remained on in employment.
2. The Union has cited Rights Commissioner's Recommendation
No. CM 16,791 in its arguments but in that case the Rights
Commissioner recognised that the retiring employee should not
get more than he would have earned had he not been retiring.
On that occasion, however, because the Union had not been
aware of the actual application, he made an exception which
was not intended as a precedent.
3. More recently, the Labour Court itself recommended in
L.C.R. 11744 (a claim by three workers employed by the Office
of Public Works), that a retiring worker was entitled to only
half the compensation of the two workers who were continuing
in employment.
RECOMMENDATION:
6. The Court feels that the consideration which the Rights
Commissioner applied in the case cited by the Union should apply
equally in this case. Accordingly the Court recommends concession
of the Union's claim for the payment made under L.C.R. 11225.
~
Signed on behalf of the Labour Court
John M. Horgan
_________________________
20th May, 1988. Chairman
D.H./J.C.