Labour Court Database __________________________________________________________________________________ File Number: CD92768 Case Number: AD9331 Section / Act: S13(9) Parties: SOUTH EASTERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's recommendation S.T. 369/92, concerning compensation for loss of earnings.
Recommendation:
5. The Court has fully considered the views, oral and written of
the parties, and has also taken account of the recommendation of
the Rights Commissioner.
It is the view of the Court that the complainant earned the
following in the years 1990 - 1992 inclusive:
1990 - #5,861
1991 - #3,353
1992 - #3,830 + #5,838 (730 hours paid at 1.25. See Rights
Commissioner's calculations)
He earned an average over these 3 years #6,304 per year.
His increase gave him #2,314 per annum.
Therefore the loss of earnings in the view of the Court is #3,990.
The 730 hours owing to the complainant are separate to this and
should be dealt with by arrangement between the parties.
The Rights Commissioner's Recommendation should be amended
accordingly.
The Court so decides.
Division: MrMcGrath Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD92768 APPEAL DECISION NO. AD3193
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES: SOUTH EASTERN HEALTH BOARD
and
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's recommendation S.T.
369/92, concerning compensation for loss of earnings.
BACKGROUND:
2. The worker concerned was employed by the South Eastern Health
Board in the boilerhouse at St. Canice's Hospital, Kilkenny. In
early 1992, the boilerhouse was converted to natural gas and the
two man boilerhouse crew were transferred to other duties.
Discussions took place between the parties in relation to
compensation for loss of earnings as a result of the transfer but
no agreement was reached in respect of the worker concerned. The
Union claims that the Board in its calculations failed to take
into account, 750 hours overtime which the worker concerned worked
in the year ending April, 1992, for which he is due time off in
lieu. The Board rejected the claim.
The matter was referred to a Rights Commissioner for investigation
and recommendation. On 24th November, 1992, the Rights
Commissioner recommended as follows:
"I recommend that the claimant receives the following:
Extra travel # 1,000 x 1.25 = #1,250
Canteen meals # 144 x 1.25 = # 180
Loss of o/t #13,492 - 52 x 1.25 = #5,838
Total = #7,268
I therefore recommend that the claimant receives #7,268 in
full and final settlement of all his claims".
The Rights Commissioner's recommendation was appealed to the
Labour court by both parties on 11th December, 1992. The Labour
Court heard the appeal on 24th February, 1993.
UNION'S ARGUMENTS:
3. 1. The calculation for compensation must take into account
the amount of pay which the worker concerned would have earned
in the year ending April, 1992, if he had opted for payment of
the 750 hours overtime.
2. The calculation must also take into account additional
losses in respect of wash-up time, extra canteen meals, paid
lunch break and extra travelling.
3. Compensation of three times the annual loss is not
unusual in the circumstances.
BOARD'S ARGUMENTS:
4. 1. The worker concerned opted for time off in lieu of
overtime.
2. If the worker concerned is to be compensated for loss of
overtime then the Board should be freed of its obligation to
grant accumulated time off in addition, as this in effect will
double the compensation of the worker concerned.
3. The worker concerned has been re-deployed to the post of
fitter which guarantees an increase of #44.49 per week.
4. The Board in accordance with previous Labour Court
Recommendations recognises that compensation for loss of
premia payments should be paid. In the circumstances the
Board's offer is reasonable.
5. Agreement has already been reached with another worker on
the basis of the offer made to the worker concerned.
6. It would be unfair if the worker concerned was awarded
compensation in excess of the terms which have already been
agreed with another worker.
7. Any award in excess of the Board's offer would create
serious difficulties for the Board in setting an unnecessary
and unjustified precedent.
DECISION:
5. The Court has fully considered the views, oral and written of
the parties, and has also taken account of the recommendation of
the Rights Commissioner.
It is the view of the Court that the complainant earned the
following in the years 1990 - 1992 inclusive:
1990 - #5,861
1991 - #3,353
1992 - #3,830 + #5,838 (730 hours paid at 1.25. See Rights
Commissioner's calculations)
He earned an average over these 3 years #6,304 per year.
His increase gave him #2,314 per annum.
Therefore the loss of earnings in the view of the Court is #3,990.
The 730 hours owing to the complainant are separate to this and
should be dealt with by arrangement between the parties.
The Rights Commissioner's Recommendation should be amended
accordingly.
The Court so decides.
~
Signed on behalf of the Labour Court
Tom McGrath
_____________________
30th April, 1993. Deputy Chairman
F.B./J.C.