Labour Court Database __________________________________________________________________________________ File Number: CD92577 Case Number: AD92227 Section / Act: S13(9) Parties: CARLOW URBAN DISTRICT COUNCIL (U.D.C.) - and - A WORKER;A.B. JORDAN AND COMPANY, SOLICITORS |
Appeal by both parties against Rights Commissioner's Recommendation No. B.C. 169/92.
Recommendation:
5. The Court concurs with the findings of the Rights Commissioner
that the terms and conditions on which the complainant commenced
employment carried with it the obligation to work a five day week
over six days.
The Court considers however that the compensation in respect of
the loss of overtime should be in the amount of #2,500. The
Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
CD92577 APPEAL DECISION NO. AD22792
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: CARLOW URBAN DISTRICT COUNCIL (U.D.C.)
and
A WORKER
(REPRESENTED BY A.B. JORDAN AND COMPANY, SOLICITORS)
SUBJECT:
1. Appeal by both parties against Rights Commissioner's
Recommendation No. B.C. 169/92.
BACKGROUND:
2. The worker concerned commenced employment with Carlow U.D.C.
as a traffic warden in January, 1979. He was rostered for duty on
a 40 hour week Monday to Friday with Saturday and Sunday off. He
worked overtime on Saturdays from 1980-1986 (details supplied to
the Court). In 1986, the Council altered his work roster and he
was detailed to work on Saturdays as part of his 40 hour week with
Tuesday as his day off. His overtime earnings ceased. He claimed
that he was unfairly treated and referred the issue to a Rights
Commissioner for investigation and recommendation. On the 6th
August, 1992, the Rights Commissioner issued his recommendation as
follows:
"In the light of the above I recommend that Carlow County
Council pay to the worker the sum of #4,000 and that this be
accepted by him in full and final settlement of all claims on
the County Council in relation to this issue".
(The worker was named in the Rights Commissioner's
recommendation).
Subsequently both parties appealed the recommendation to the
Labour Court under Section 13(9) of the Industrial Relations Act,
1969. The Court heard the appeal in Carlow on the 12th November,
1992.
WORKER'S ARGUMENTS:
3. 1. At the commencement of his employment, the worker was
advised by Management that his hours of duty would be from
Monday to Friday. Subsequently he was required to work
overtime on Saturdays and did so on a regular basis from 1980
to 1986. In 1986, the Council, without consulting the worker,
unilaterally altered his conditions of employment which
resulted in the worker suffering a substantial reduction in
his earnings. This had a detrimental effect on his family
circumstances and his standard of living. He found it
difficult to fulfil financial commitments undertaken on the
basis of his average weekly earnings which, by custom and
practice, included consistent overtime for many years.
2. The Council claims that financial constraints necessitated
the change in the worker's roster. In 1989 because of the
increasing workload the Council recruited another traffic
warden. The worker's financial loss has been ongoing since
1986. If rostered to work Saturday on overtime, at present
rates, the overtime payment would be approximately #80. The
worker is entitled to substantial compensation for his loss of
earnings.
COUNCIL'S ARGUMENTS:
4. 1. The conditions of employment under which traffic wardens
are employed provide that "they will be required to work a 40
hour week within the period from 9.00 a.m. to 9.00 p.m. on
weekdays including Saturdays". The Council agreed to roster
the worker on Saturday overtime originally on an experimental
basis and accepts that by custom and practice, he was on these
hours until 1986. He has since worked on Saturdays as part of
his normal 40 hour week, in accordance with his terms of
employment.
2. The Council was forced to end the worker's overtime
because of severe financial constraints. He has not worked
overtime in the past six years. Because of the time lapse
between the worker's loss of enhanced earnings and his claim,
there is no logic in awarding a compensatory payment.
3. The amount of compensation awarded by the Rights
Commissioner is totally out of proportion to the amount of
overtime worked by the claimant. The total amount of his
overtime earnings in the period in question was #5,680 an
annual average of #814. The Rights Commissioner has awarded
five times the annual loss. Awards normally made by the
Labour Court range from 6 months loss to an absolute maximum
of two times the annual loss.
DECISION:
5. The Court concurs with the findings of the Rights Commissioner
that the terms and conditions on which the complainant commenced
employment carried with it the obligation to work a five day week
over six days.
The Court considers however that the compensation in respect of
the loss of overtime should be in the amount of #2,500. The
Rights Commissioner's recommendation should be amended
accordingly.
The Court so decides.
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Signed on behalf of the Labour Court
Tom McGrath
__________________
3rd December, 1992. Deputy Chairman.
T.O'D./J.C.