Labour Court Database __________________________________________________________________________________ File Number: CD91273 Case Number: AD9186 Section / Act: S13(9) Parties: WATERFORD COUNTY COUNCIL - and - SERVICES INDUSTRIAL PROFESSIONAL AND TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's recommendation No. S.T. 422/90 concerning a dispute over payment in respect of loss of earnings to a worker.
Recommendation:
8. Having considered the submissions made by the parties and
taking account of the difficulty of assessing the potential loss
by the worker concerned the Court is of the opinion that the
Rights Commissioner's Recommendation should stand.
The Court so decides.
Division: Mr O'Connell Mr Brennan Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD91273 APPEAL DECISION NO. AD8691
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9) OF INDUSTRIAL RELATIONS ACT, 1969
PARTIES: WATERFORD COUNTY COUNCIL
and
SERVICES INDUSTRIAL PROFESSIONAL AND TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
recommendation No. S.T. 422/90 concerning a dispute over payment
in respect of loss of earnings to a worker.
BACKGROUND:
2. The worker is employed as a waterworks caretaker by the
Council since 1957. In addition, from 1969 up to 1986, he was
employed on a part-time basis collecting water charges on a
commission basis. The rate of commission varied over the years
and for the years 1984, 1985 and 1986 a tiered system was
introduced which yielded about 7% of revenue collected.
3. In 1985, a national formula was agreed to rationalise the
collection of local authority revenues, which resulted in eight
full time posts of revenue collector being created by the Council.
These posts were advertised internally and five collectors out of
eight eligible to apply applied and were successful. The worker
here concerned was one of those who applied and was offered
appointment on 19th December, 1986. Following correspondence
between the worker and the Council he declined the position.
4. The worker retained his position as water works caretaker and
the water charges' duties were taken on by someone else. The
Union lodged a claim for loss of earnings on behalf of the worker.
The Council rejected the claim and following a number of meetings
the issue was referred to a Rights Commissioner for investigation
and recommendation. The Rights Commissioner investigated the
claim on 12th March, 1991 and on 11th April, 1991 he issued the
following findings:-
"1. The claimant has suffered a loss of earnings which
he enjoyed over a long number of years. He had the
option of moving to another function but he chose not
to do so.
2. The figures clearly show that his average "take"
was between 33% and 39% of the total collection due.
3. The next lowest take up was the Portlaw area with
38% between 1984 and 1986.
4. This indicates that his loss of earnings is not as
great as that claimed by the Union.
5. I find that his real losses are #258 per annum.
This is arrived at by adding his earnings of #2,594 as
a Meter Change Collector to his ordinary wage of
#10,347 giving a total of #12,941. He was offered a
post at #12,683 which he refused to take as other costs
such as telephone, office, etc. were not covered.
6. I am satisfied that other staff in similar
circumstances have been compensated".
and he recommended:-
"I recommend that the claimant receives compensation
consisting of three elements: real loss, telephone and
office charges. I put these at #516, #200 and #600,
respectively, making a total of #1,316. The annual
cost of telephone and office accommodation have been
deducted by me from his offered salary of #12,683 and
have been subjected to the formula normally used for
compensation resulting in the figures above.
I therefore recommend that the claimant receives the
sum of #1,316 in full and final settlement of all his
claims including those related to his alleged loss of
superannuation which was raised at this investigation."
UNION'S ARGUMENTS:
6. 1. The amount recommended does not meet the Union's claim
of #10,000 which is roughly twice the annual loss.
2. The Council's claim that actual loss of earnings is #258
per annum is unreasonable. This figure is based on the
difference of what he earned as water works' caretaker plus
revenue collection earnings and what he would have earned as
revenue collector. The worker declined the job as it
represented a worsening of his conditions of employment
(details supplied to the Court). Therefore his actual loss of
earnings should be used in determining compensation.
3. The worker considers that the deduction of
superannuation contributions from his commission earnings as
improper as that position was not an "office" within the
meaning of the Superannuation Acts.
COUNCIL'S ARGUMENTS:
7. 1. The worker was offered and declined a full-time post as
revenue collector which would not have resulted in any great
loss of earnings (details supplied to the Court). As a
consequence it is the worker, and not the Council, who is
responsible for the diminution of his earnings.
2. Cessation of the need to perform the meter charge
collection service is not a basis for compensation.
3. Other Councils which adopted similar arrangements did
not pay compensation.
4. Concession of the claim could have repercussive effects.
DECISION:
8. Having considered the submissions made by the parties and
taking account of the difficulty of assessing the potential loss
by the worker concerned the Court is of the opinion that the
Rights Commissioner's Recommendation should stand.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
30th September, 1991 --------------
M.D. / U.S. Deputy Chairman