Labour Court Database __________________________________________________________________________________ File Number: CD93204 Case Number: AD9350 Section / Act: S13(9) Parties: KILDARE VOCATIONAL EDUCATION COMMITTEE (V.E.C.) - and - A WORKER |
Appeal by both parties against Rights Commissioner's Recommendation No. C.W. 346/92.
Recommendation:
5. Having examined the submissions of the parties the Court
considers that the claimant does not derive any right to
compensation because there was a delay between the date of his
appointment and the date he was assigned to duties. However the
Court accepts that other unusual circumstances involving the
architect's office and the V.E.C. office gave rise to continuing
expectations of much earlier employment and inhibited the claimant
in relation to alternative work. In the circumstances, the Court
is of the view that the Kildare V.E.C. should make an ex gratia
payment of #1,000 to the claimant in full and final settlement of
his claim.
The Court so decides.
Division: Mr Heffernan Mr Brennan Mr O'Murchu
Text of Document__________________________________________________________________
CD93204 APPEAL DECISION NO. AD5093
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: KILDARE VOCATIONAL EDUCATION COMMITTEE (V.E.C.)
DEPARTMENTS OF EDUCATION AND FINANCE
and
A WORKER
SUBJECT:
1. Appeal by both parties against Rights Commissioner's
Recommendation No. C.W. 346/92.
BACKGROUND:
2. The worker concerned was appointed to the position of clerk of
works for a school extension at Prosperous, Co. Kildare in March,
1987. He was not given a fixed date of commencement for the
project which, after numerous delays, started in November, 1988.
The worker submitted a claim for compensation for the period
March, 1987 to November, 1988. Management rejected the claim.
The issue was referred to a Rights Commissioner for investigation
and recommendation. On the 15th March, 1993 the Rights
Commissioner issued his recommendation as follows:
"I recommend that Kildare V.E.C. offers and the worker accepts
the sum of #3,000 in settlement of this dispute".
(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 on the 9th June, 1993.
WORKER'S ARGUMENTS:
3. 1. Following an interview with the architect in charge of the
building project the worker was appointed in March, 1987. The
architect advised him that work would commence in Mid April,
1987 and advised the worker to keep in touch with both the
architect's and V.E.C.'s offices. The worker regularly
contacted both offices. Each time he was advised that
starting up time would be in 'five or six weeks'. He expected
the project to commence at any time. This did not happen
until November, 1988.
2. The worker is entitled to compensation from March, 1987 to
November, 1988. He was unemployed during this period through
no fault of his own. Because he anticipated commencing work
at any time he turned down possible offers of alternative
work. The Rights Commissioner's award is inadequate given the
length of time the worker was unemployed.
MANAGEMENT'S ARGUMENTS:
4. 1. At the time of his appointment the worker concerned was
not given a starting date for the commencement of his duties.
No commitment was given to the worker regarding the starting
date of his employment. The architect was to contact him in
this regard. There is no record of written or verbal
communications between the claimant and either the architect
or the V.E.C.'s office.
2. The worker is an experienced clerk of works and would have
been aware that public construction contracts can be subject
to delays for various reasons. The worker would have known
that the appointment of clerk of works would not come into
effect until a contract had been placed.
DECISION:
5. Having examined the submissions of the parties the Court
considers that the claimant does not derive any right to
compensation because there was a delay between the date of his
appointment and the date he was assigned to duties. However the
Court accepts that other unusual circumstances involving the
architect's office and the V.E.C. office gave rise to continuing
expectations of much earlier employment and inhibited the claimant
in relation to alternative work. In the circumstances, the Court
is of the view that the Kildare V.E.C. should make an ex gratia
payment of #1,000 to the claimant in full and final settlement of
his claim.
The Court so decides.
~
Signed on behalf of the Labour Court
Kevin Heffernan
_________________
24th June, 1993. Chairman.
T.O'D./J.C.