Labour Court Database __________________________________________________________________________________ File Number: CD92269 Case Number: AD92175 Section / Act: S13(9) Parties: BUS ATHA CLIATH - and - TRANSPORT SALARIED STAFFS' ASSOCIATION |
Appeal by the Union against Rights Commissioner's Recommendation No. S.T. 471/91 concerning a claim by the Union for compensation for the loss of earnings of a worker.
Recommendation:
The Court has considered the submissions made by the parties on
the issue which has been the subject of two Rights
Commissioner's Recommendations and takes the view that no
adjustment in the amount of compensation awarded is warranted.
The Court so decides.
Division: Mr O'Connell Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD92269 APPEAL DECISION NO. AD17592
INDUSTRIAL RELATION ACTS 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: BUS ATHA CLIATH
and
TRANSPORT SALARIED STAFFS' ASSOCIATION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. S.T. 471/91 concerning a claim by the Union
for compensation for the loss of earnings of a worker.
BACKGROUND:
2. 1. In 1989 the worker concerned held the post of senior
clerical assistant in the punch room of the Donnybrook
Audit Office. Her duties included the supervision of
clerical staff and involved the working of regular
overtime. The worker's earnings for the year ending 3rd
January, 1989 were #18,400 (inclusive of overtime) on a
basic salary of #11,715. In 1989 the Company carried out
an overall review of expenditure. As a result of measures
taken by the Company overtime working at the audit office
was reduced and the earnings of the worker concerned for
the year-ending 3rd January, 1990 were #12,863. In August,
1989 the Union submitted a claim on behalf of the worker
for the loss of overtime earnings based on the Clerical and
Executive Grades (C.E.G.) productivity agreement which
provides for compensation of 2.5 times the loss, subject to
a maximum of #4,400 (present rate is #4,700). The Company
rejected the claim. The dispute was referred to a Rights
Commissioner who investigated it on 1st October, 1990 and
issued recommendation no. S.T. 262/90 which states as
follows:-
"Following a number of side conferences I was unable to
effect a settlement as the claimant wished for a tax
free settlement which was not possible and is not and
never was a feature of this employment.
The overtime was not rostered. However, it had become
institutionalised overtime due to lax management
procedures at the Depot to which the claimant
contributed in some measure. Despite this there is in
my view a valid claim and some compensation is due. The
terms of the C.E.G. Agreement are neither relevant or
realistic given the state of the Company's finances.
Taking this into account and the fact that the claimant
has been promoted out of the area to a higher grade I
recommend that she receives the sum of #2,500 in full
and final settlement of all her claims."
The Recommendation was accepted by the parties and the
Company paid the #2,500 compensation.
2. In November, 1991 the Union requested a further
investigation of the dispute on the following grounds:-
(1). The Union claimed that, while the Company had refused
to pay the worker the maximum compensation available under
the C.E.G. formula, the Company subsequently paid maximum
compensation to other workers in similar circumstances.
The balance of #2,200 should be paid to the worker i.e.
maximum compensation of #4,700 less #2,500 already paid.
(2). The Union claimed that the Rights Commissioner's
Recommendation was flawed as it was based to some extent on
allegations by the Company which were not accurate and were
subsequently withdrawn by the Company. The Rights
Commissioner investigated the dispute on 18th March, 1992
and issued Recommendation No. S.T. 471/91 on 20th March,
1992 which states as follows:-
"I recommend that the claim for the additional sum of
#2,200 (taxable) fails, as the criteria laid down in the
Agreement was not strictly met by the circumstances of
the case."
The Union by letter dated 28th April, 1992 appealed against
the recommendation under Section 13(9) of the Industrial
Relations Act, 1969. The Court heard the appeal on 8th
June, 1992 (the earliest date suitable to the parties).
UNION'S ARGUMENTS:
3. 1. As a result of new technological procedures introduced
by the Company in 1990 the worker suffered a loss of
overtime earnings which had been ongoing for 12 years. The
worker should be compensated for her loss as the new system
has accrued considerable savings for the Company in that
all but two of the original seven positions engaged in the
old system were suppressed.
2. When the Rights Commissioner first investigated the
dispute and issued Recommendation No. S.T. 262/90 the Union
was concerned about remarks in the recommendation which
were based on the submission made by the Company.
Following local discussions the Company in a letter dated
14th November, 1990 accepted that the remarks in question
were inaccurate (details supplied to the Court). As the
Company's letter completely vindicated the worker, and the
Company had not in recent years implemented the C.E.G.
compensation formula and were unlikely to do so again, the
Union accepted the Rights Commissioner's recommendation.
3. The Company subsequently agreed to pay the maximum
amount based on the C.E.G. compensation formula to cash
portering staff arising from a re-organisation involving
job suppressions. The worker has suffered a loss of
earnings in similar circumstances and should not be treated
less favourably than the cash portering staff.
4. The C.E.G. compensation formula is applicable in the
circumstances of this case. The Company has accrued
considerable savings arising from the job suppressions in
the Audit Office. The Union's claim for compensation based
on the C.E.G. compensation formula was moderated in error
by the Rights Commissioner to take account of the Company's
inaccurate allegations.
COMPANY'S ARGUMENTS:
4. 1. Following the issue of the first Rights Commissioner's
Recommendation the Company issued the letter dated 14th
November, 1990 which clarified remarks made in the
Company's submission to the Rights Commissioner. The
Company was advised that the Rights Commissioner's
Recommendation ST 262/90 was acceptable on the basis of the
Company's letter. The Company understood that the matter
was finalised and implemented the Recommendation in good
faith.
2. The C.E.G. productivity agreement was negotiated as a
result of major productivity deals involving big reductions
in staff as well as major changes in working conditions.
The terms of the C.E.G. agreement are neither relevant or
realistic in this case. In both of his investigations the
Rights Commissioner found that the C.E.G. agreement is not
applicable.
3. It is not Company policy to compensate staff for loss
of earnings except where it is regular rostered overtime.
There is no rostered overtime for any staff in the clerical
grade.
4. The Company is in a serious financial position and
cannot afford to entertain claims of this nature.
Concession of the claim would have repercussive effects.
There is no justification for any further payments in this
case.
DECISION:
The Court has considered the submissions made by the parties on
the issue which has been the subject of two Rights
Commissioner's Recommendations and takes the view that no
adjustment in the amount of compensation awarded is warranted.
The Court so decides.
~
Signed on behalf of the Labour Court
John O'Connell
29th June, 1992 ___________________
A.S./N.Ni.M. Deputy Chairman