Labour Court Database __________________________________________________________________________________ File Number: CD91560 Case Number: LCR13612 Section / Act: S13(9) Parties: WESTERN CARE ASSOCIATION - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
An appeal by the 3 workers against a Rights Commissioner's Recommendation No. (S.T. 208/91) regarding the back-dating of an unsocial hours allowance.
Recommendation:
5. The Court having considered the submissions of the parties and
the recommendation of the Rights Commissioner considers that the
claim of the workers concerned should be addressed by the payment
of a lump sum of £5,000 per person in full and final settlement of
the claim. The Court is aware of the financial constraints on the
Association and accordingly the parties should agree a phased
basis for the payment of the above award.
The Court so decides.
Division: MrMcGrath Mr McHenry Mr Devine
Text of Document__________________________________________________________________
CD91560 RECOMMENDATION NO. LCR13612
THE LABOUR COURT
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9) INDUSTRIAL RELATIONS ACT, 1969
Parties: WESTERN CARE ASSOCIATION
(Represented by the Federation of Irish Employers)
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. An appeal by the 3 workers against a Rights Commissioner's
Recommendation No. (S.T. 208/91) regarding the back-dating of an
unsocial hours allowance.
BACKGROUND:
2. 1. The Association is a voluntary body catering for the
needs of the mentally handicapped in the Mayo area, in
residential and day care centres. The Association is financed
by the Western Health Board and (90%) voluntary contributions.
2. In October, 1990, the 3 workers made a claim on the
Association for the payment of an unsocial hours allowance.
They had discovered that they were the only workers of their
grade who were not paid the allowance. The Association agreed
to pay the allowance to the workers with effect from 1st
October, 1990.
3. In November, 1990, the workers made a claim for the
payment of retrospection.
No agreement was reached on the claim and it was referred to
the Rights Commissioners' service for investigation and
recommendation.
4. A Rights Commissioner's investigation took place on 20th
September, 1991. The recommendation as set out below was
issued on 11th October, 1991.
"In all the circumstances I recommend the following
formula as being reasonable; £8 x 4 nights x 48 weeks =
(working year) = £1,536. This sum represents the real
annual loss. I am applying the N.W.H.B. formula of
1.25 times the annual loss to this sum giving a sum of
£1,920. I therefore recommend that each claimant
receives £1,920 in full and final settlement of her
claim.
5. The recommendation was appealed to the Labour Court by
the Union by letter dated 22nd October, 1991, under Section
13(9) of the Industrial Relations Act, 1969. A Labour Court
investigation into the dispute took place in Castlebar on 12th
February, 1992.
UNION ARGUMENTS:
3. 1. The Rights Commissioner's recommendation is being
appealed on the basis that the formula for paying
retrospection is inadequate and falls short of the workers
claim which was on the basis that they had lost out
financially for a number of years (details supplied). The
workers accept that a genuine error was responsible for the
failure of the Association to pay the correct allowance. The
workers, do not accept that they were somewhat responsible for
the Association's error. The Union's view is that the
responsibility for setting out clearly and unequivocally the
conditions of service rests with the Association.
2. The Rights Commissioner failed to take account of the 12
hours anti-social payment which is equal to 3 hours' pay or
7.5% of roster. This element of calculation for compensation
is an integral part of the payments. The Company/Union
agreement sets out the unsocial hours agreement (details
supplied).
3. Had the Rights Commissioner recommended a higher level
of compensation, its implementation could have been discussed
with the Association. The workers were never party to an
agreement that use of accommodation by the workers was in lieu
of the allowance. The workers are being victimised for an
error for which they are not responsible. Full retrospection
is a legitimate claim.
COMPANY ARGUMENTS:
4. 1. The payment of the allowance was implemented by the
Association from 1st October, 1991, following local
discussions. The payment was a gesture of goodwill and the
question of retrospection was not an issue at the time of
local negotiations. The Association denies that the payments
were part of the workers' conditions of employment. The
Association has always fulfilled its obligations on negotiated
agreements and is satisfied that the allowances did not exist
for the workers prior to 1st October, 1991.
2. It has been the practice for the workers to use the
accommodation outside of the time prescribed and free of
charge. This is not the practice in other areas of the
Association nor in similar organisations. A similar claim was
served on the Association in 1985. The Association argued
that the workers benefited from free accommodation and the
claim was not pursued.
3. The Rights Commissioner made his recommendation
following consideration of all the information relating to the
case. Despite its ongoing financial position (details
supplied) and in an effort to resolve the grievance, the
Association is willing to implement the recommendation.
RECOMMENDATION:
5. The Court having considered the submissions of the parties and
the recommendation of the Rights Commissioner considers that the
claim of the workers concerned should be addressed by the payment
of a lump sum of £5,000 per person in full and final settlement of
the claim. The Court is aware of the financial constraints on the
Association and accordingly the parties should agree a phased
basis for the payment of the above award.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
1st March, 1992 -----------
J.F./U.S. Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to
Mr. Jerome Forde, Court Secretary.