Labour Court Database __________________________________________________________________________________ File Number: CD9116 Case Number: AD9117 Section / Act: S13(9) Parties: AER LINGUS - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Company against Rights Commissioner's recommendation No. 321/90 concerning a claim for compensation for disturbance in respect of 16 clerical staff located at 38 Patrick Street, Cork.
Recommendation:
5. Given the present financial state of the Company and the
continuous need to update and improve facilities the Court takes
the view that grounds for compensation for "disturbance" should
only be adduced where the inconvenience to staff is of a
continuous and severe nature.
The Court concurs with the view of the Rights Commissioner that
there is a need for a formal agreement on "disturbance" type
claims.
The procedure outlined by the Company in their letter of 19
October, 1990 should be accepted by both parties on the
understanding that the provisions apply only to claims where there
has been severe and lengthy disturbance and will not apply to
claims related to temporary inconvenience.
In all the circumstances of this case the Court concurs with the
findings of the Rights Commissioner and decides that #350 should
be paid to each claimant in full and final settlement of their
claims.
Division: MrMcGrath Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD9116 APPEAL DECISION NO. AD1791
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: AER LINGUS
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
recommendation No. 321/90 concerning a claim for compensation for
disturbance in respect of 16 clerical staff located at 38 Patrick
Street, Cork.
BACKGROUND:
2. The Company's premises at Patrick Street houses the public
booking office, the reservations office and the passenger sales
office. The building consists of a ground floor and three upper
floors. In 1989, the Company commenced essential maintenance work
on the building. At that time the top floors of the building were
not in use. After work commenced it transpired that problems with
the building were far greater than had originally been estimated.
The Company considered moving to alternative accommodation but was
unable to secure a suitable location. As well as correcting the
problems with the building the Company decided to utilise the
entire building and renovations on the upper floors were also
carried out. The major construction work was completed recently
and there is some minor work yet to be completed. The Union made
a claim for disturbance compensation for the staff who worked in
the building. This claim was rejected by the Company. No
agreement was reached at local level discussions and the matter
was referred to a Rights Commissioner for investigation. The
Rights Commissioner investigated the dispute on 27th September,
1990 and 9th November, 1990. He issued the following
recommendation on 30th November, 1990:-
"RECOMMENDATION:
The investigation included a visit to the site to observe
the work in progress. The work involved was deemed by the
Company to be necessary in order to carry on the business
efficiently in attractive surroundings for its customers.
The Company decided that it was not feasible to move staff
during the operation which included major structural work.
It cannot be denied that the conditions endured were far
from normal for clerical/sedentary type work. I appreciate
the points made by the Company in relation to the volume of
such claims. However, it would be most unfair if these
claimants were not to succeed as by comparison with other
claims theirs is fully justified in my view.
In all the circumstances I recommend that each claimant
receives #350 in full and final settlement of their claims
under all headings to cover the period to completion of the
work in question".
The Company on 20th December, 1990 appealed the recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal in Cork on 12th February,
1991.
UNION'S ARGUMENTS:
3. 1. For the past 15 months the staff concerned have
experienced an un-acceptably high level of disturbance and
inconvenience. Major structural work was undertaken
including a whole new roof, new windows, etc. Dirt, dust,
noise and poor sanitary conditions were experienced and the
work is not yet completed. Personal clothing and effects
were damaged by dust and dirty conditions. The level of
disruption experienced by the workers concerned warrants the
amount of compensation recommended by the Rights
Commissioner.
2. The Company decided to appeal the recommendation because
of failure to reach agreement on the processing of future
disturbance compensation claims. In his investigation into a
similar dispute concerning the Aer Lingus "Post Room", the
Rights Commissioner suggested that "a formal system of
independent assessment should be reached quickly".
Subsequent discussions between the Company and Union failed
to produce an agreement. The reason for this failure was the
Company's insistence on there being some un-specified form of
pre-screening-out process prior to claims being heard by an
agreed third party. All other points were agreed. The Union
believes that the Company's "pre-screening" proposal is both
impractical and unworkable. If agreement can be reached as
to who the third party would be, it should then be up to that
person to decide each case on its own merits.
3. During 1990, the Rights Commissioner dealt with (at
least) three similar cases and in all cases, the Company
accepted and implemented the proposed awards. It is unfair,
therefore, to seek to preclude staff in the Cork booking
office because of failure to reach agreement on the
processing of future cases, particularly as the staff in the
Cork office have suffered such a high level of disturbance
and disruption.
COMPANY'S ARGUMENTS:
4. 1. Due to circumstances beyond the control of the Company
renovation work took longer than estimated. The Company made
every effort to minimise the inconvenience to the staff in
the premises. Improvements to the building more than
compensate for any inconvenience as the Company made a very
substantial investment in the office. In the present
financial climate the Company cannot concede claims which
further increase cost.
2. The Company has made proposals, by letter dated 19th
October, 1990 on a reasonable method for dealing with
disturbance compensation claims. The proposals are based on
the fact that in most cases where work is carried out it only
leads to temporary inconvenience and therefore no claim is
justified. The Company proposed that agreement be reached on
a new method of dealing with the small number of cases where
continuous severe disruption occurred over a long period.
These proposals were not acceptable to the Union and no
agreement was reached in subsequent negotiations. The
Company will not concede any further claims for disturbance
compensation until there is an agreed sensible policy on the
matter.
3. The Rights Commissioner's recommendation does not take
account of the current financial crisis in the airline and
the fact that there are so many claims of this nature
outstanding. The Company cannot afford to concede these
claims and it is the Company's policy to reject them.
DECISION:
5. Given the present financial state of the Company and the
continuous need to update and improve facilities the Court takes
the view that grounds for compensation for "disturbance" should
only be adduced where the inconvenience to staff is of a
continuous and severe nature.
The Court concurs with the view of the Rights Commissioner that
there is a need for a formal agreement on "disturbance" type
claims.
The procedure outlined by the Company in their letter of 19
October, 1990 should be accepted by both parties on the
understanding that the provisions apply only to claims where there
has been severe and lengthy disturbance and will not apply to
claims related to temporary inconvenience.
In all the circumstances of this case the Court concurs with the
findings of the Rights Commissioner and decides that #350 should
be paid to each claimant in full and final settlement of their
claims.
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Signed on behalf of the Labour Court
12th March, 1991 Tom McGrath
A.S./M.O'C. _______________
Deputy Chairman