Labour Court Database __________________________________________________________________________________ File Number: CD90217 Case Number: AD9025 Section / Act: S13(9) Parties: IRISH RAIL - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. ST 386/89 concerning compensation for loss of earnings.
Recommendation:
6. Having considered the submissions from the parties and noting
that the loss of earnings arose as a result of loss of business,
the Court is of the view that the appeal from the Company is well
founded and should be upheld. The Court so decides.
Division: Ms Owens Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD90217 AD2590
INDUSTRIAL RELATIONS ACTS 1946 TO 1976
SECTION 13(9)
PARTIES: IRISH RAIL
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. ST 386/89 concerning compensation for loss of
earnings.
BACKGROUND:
2. The worker is employed as a Traffic Sorter at North Wall. For
a number of years his rostered hours of duty were from 7.30 a.m.
to 5.30 p.m. with a one hour mealbreak, this included an extra
half hour before starting time and a half hour after finishing
time each day. Since 1986 there has been a decrease in the
tonnage loaded at the Depot and due to this loss of business the
Company decided to change the worker's hours of duty to 8.00 a.m.
to 5.00 p.m., with a one hour lunch break. In order to retain the
worker's hours at their previous level the Company requested the
worker to train on the operation of the fork lift truck at the
Depot, so that he could be allocated other work in the event of
the regular operator being on annual leave, sick leave, etc. This
was unacceptable to the Union on the basis that such overtime
would not become available to this worker. The Company also
states that it suggested that the worker could supervise other
workers booking on and off duty as a means of retaining his hours.
The Union position is that this was not an issue as such
supervision was not available. The Union made a claim of two and
a half times the annual loss i.e. #3,900. This was rejected by
the Company and the matter was referred to the Rights
Commissioners Service for investigation and recommendation. A
Rights Commissioner investigated the dispute on 20th December,
1989 and issued the following recommendation-
"The rostered hours have been there for such a long
period, it would not be equitable to ignore them
completely despite the loss of throughput, which I
estimate at 22% between 1986 and 1989. Neither can I
ignore the fact that the Company tried to maintain the
hours by the provision of other work which was refused.
Given the present financial constraints for the Company
1 1/2 times the loss is excessive.
In all the circumstances I recommend that one year's loss
be paid plus deductions I see fit to impose as follows:-
#30 x 52 = #1,560
Less loss of tonnage at 22% and 28% for failure to take
up the opportunity of other work.
This leaves a nett figure of #780 which I recommend that
the claimant receives in full and final settlement of his
claim."
3. This recommendation was accepted by the Union, however, on
24th April, 1990 the Company appealed the recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal on 8th June, 1990.
COMPANY'S ARGUMENTS:
4. 1. Over the past few years there has been a considerable
decrease in the cement tonnage loaded at the depot (details
supplied to the Court). Due to this loss of business it was
obvious that the worker was not required for the hours
rostered and that these would have to be altered. Before the
roster was altered the Company carefully examined the matter
to see if it was possible to retain the worker's old roster
and overtime and requested the worker to train on the
operation of a fork lift truck to cover for emergency
situations, etc. and also suggested that he might supervise
other workers booking-on and off duty. However, both these
options were refused and the Company had no option but to
reduce the hours of duty.
2. The Company should not be required to pay compensation in
this case, as the reduction in earnings resulted directly from
loss of business. The Company remains in a difficult
financial situation and the freight section in which this
worker is employed is particularly vulnerable as it is a
purely commercial activity. If the worker had taken up the
options available to him, his earnings would remain
unaffected. Payment of compensation in this case, would set a
precedent, which would have serious repercussions in the
future and the Company's appeal should be upheld.
UNION'S ARGUMENTS:
5. 1. When the worker took up this position he had to give an
undertaking that he would start work at 7.30 a.m. and remain
on to 5.30 p.m. If he had not agreed to this he would not
have got the job. The extra hour per day, at overtime rate
would result in the loss of an hour and a half which amounts
to a gross loss of #30 per week. Under the formula agreed in
1976 the loss of earnings would be paid at two and a half
times the annual loss (#3,900) which the Union originally
claimed.
2. The Company has stated that if the worker had taken up
driving fork truck duties, then a means to employ him on a
nine hour day would be in place. However, this would not have
been possible as there are two fork truck drivers in the
store, both of whom work from 8.00 a.m. to 5.00 p.m. with a
one hour meal break. It would not be possible for someone who
was not appointed to the fork truck to get one hours overtime
when it was not there to be worked, and if such overtime was
available the appointed fork truck drivers would have first
claim on this overtime. In addition, the worker is far too
nervous for this type of work and would regard himself as
being too old to start training in this type of work. The
Union has accepted the Rights Commissioner's recommendation
and as this only constitutes a small amount of compensation
for the huge loss the worker has suffered, the recommendation
should be upheld.
DECISION:
6. Having considered the submissions from the parties and noting
that the loss of earnings arose as a result of loss of business,
the Court is of the view that the appeal from the Company is well
founded and should be upheld. The Court so decides.
~
Signed on behalf of the Labour Court,
Evelyn Owens
___15th___June,____1990. ___________________
U. M. / M. F. Deputy Chairman