Labour Court Database __________________________________________________________________________________ File Number: CD93301 Case Number: AD9363 Section / Act: S13(9) Parties: IRISH RAIL - and - NATIONAL BUS AND RAIL UNION |
Appeal by the Company against Rights Commissioner's Recommendation No. B.C. 373/92 concerning pay in lieu of Sunday duty.
Recommendation:
5. Having considered the submissions from the parties the Court
does not feel that, in all the circumstances of the case, it could
be justified in upholding the Company's appeal.
The Court accordingly rejects the appeal, and upholds the Rights
Commissioner's recommendation and so decides.
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
CD93301 APPEAL DECISION NO. AD6393
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: IRISH RAIL
and
NATIONAL BUS AND RAIL UNION
SUBJECT:
1. Appeal by the Company against Rights Commissioner's
Recommendation No. B.C. 373/92 concerning pay in lieu of Sunday
duty.
BACKGROUND:
2. The worker concerned is employed by the Company as a patrol
ganger on the Cork/Cobh railway line. In his capacity as patrol
ganger, the worker is responsible for walking his length 166/171
and to observe and comment on the condition of the track, level
crossings etc. and other matters affecting the line and report as
necessary to his Inspector.
The Union claims that the worker concerned was unfairly deprived
of the opportunity to work overtime (flagging duties) on Sunday
3rd May, 1992, and submitted a claim for compensation for nine
hour's Sunday pay. The Company rejected the claim. The matter
was referred to a Rights Commissioner for investigation and
recommendation. The Rights Commissioner on 26th March, 1993
recommended as follows:
"Having very carefully considered the matter and having
assessed the strength of argument made by each side it is my
conviction that I should uphold the claim by the Trade Union
on behalf of the worker.
In the light of the above I recommend that Irish Rail should
pay the worker a sum equivalent to 18 hours at the
appropriate hourly rate in lieu of the overtime which he has
reasonably regarded himself as being entitled to and which
was denied to him not through any maliciousness on the part
of the employer".
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the
Company to the Labour Court on 3rd May, 1993. The Labour Court
heard the appeal in Cork on 24th June, 1993.
UNION'S ARGUMENTS:
3. 1. It is normal practice for Sunday flagging duties to be
offered to the patrol ganger.
2. The worker concerned had indicated to his inspector that
he wished to be considered for all flagging duties available
at week-ends.
3. The worker concerned indicated to his Inspector that he
was claiming overtime for 3rd May, 1992 by entering 9 hours
overtime on his weekly time-sheet.
4. The worker rejects the claim that he refused to work
Sunday overtime. In a period of about 2 years he was
unavailable on 4 occasions.
5. The Company has treated the worker unfairly. It decided
not to offer him flagging duties on the Sunday in question so
he was not called in. There was no difficulty in contacting
the worker as he has been contacted in similar circumstances
on numerous occasions.
COMPANY'S ARGUMENTS:
4. 1. The worker concerned did not work or seek work on the
Sunday in question.
2. The worker made an erroneous entry on his timesheet in
respect of the Sunday in question and subsequently sought to
justify his action by claiming an entitlement to flagging
duties performed by a platelayer member of the mobile gang.
3. In the week preceding the Sunday in question the worker
concerned was employed on normal patrolling duties (i.e. 3
days per week Monday, Wednesday, Friday), while the Cork/Cobh
mobile gang was working on replacing defective materials. The
worker did not seek to work with the mobile gang on his
non-patrol days.
4. It is contrary to normal practice that a patrol ganger who
has not worked with a mobile gang on his length in the week
proceeding a Sunday should be called in for flagging duties on
the Sunday. The normal practice is that the man who performs
the flagging duty during the preceding week-days also performs
that duty on Sunday and this is what happened on the Sunday in
question.
5. On the Sunday in question re-stressing work was programmed
to take place between the 159.25 and 161 mile posts. However,
on Friday 1st May, 1992, it was found necessary due to the
non-availability of welders to change this to the replacement
of defective materials at Tivoli (i.e. between the 166.50 and
167 mile posts - the worker's length). The permanent way
inspector and the mobile ganger were made aware of the change
in the week-end programme at approximately 16.00 hours on the
afternoon of Friday 1st May. At that point it became their
responsibility to organise a gang of men to carry out the
revised work programme.
6. The worker concerned was not contacted due to the fact
that he had not worked with the mobile gang during the
preceding week and because he had previously avoided such
Sunday duty. It should also be said that the worker finished
work at 16.00 hours on Friday and has no home telephone. In
this latter regard a survey of Sunday working by patrol
gangers in the Cork division during the calendar year 1992
shows that while two of his colleagues worked 40 and 30
Sundays respectively the worker was on duty for 18 in total.
7. In the period January, 1992 to 2nd May, 1992, the
Cork/Cobh mobile gang worked a total of 16 Sundays, 4 of which
were on the worker's length, yet he worked on none of these
Sundays.
8. If the worker concerned had wished to work on the Sunday
in question he should have reported for duty and he would have
been accommodated on non-flagging work.
9. It is the Company's policy that no payment is made in
respect of Sunday duty, overtime, or rest-day working where
work is not performed. This principle has been upheld by
third parties on numerous occasions.
DECISION:
5. Having considered the submissions from the parties the Court
does not feel that, in all the circumstances of the case, it could
be justified in upholding the Company's appeal.
The Court accordingly rejects the appeal, and upholds the Rights
Commissioner's recommendation and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
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5th August, 1993. Deputy Chairman.
F.B./J.C.