Labour Court Database __________________________________________________________________________________ File Number: CD95354 Case Number: AD9562 Section / Act: S13(9) Parties: EASTERN HEALTH BOARD - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal by the Union against Rights Commissioner's Recommendation No. BC42/95 concerning a claim for the payment of key-holding allowance.
Recommendation:
Having considered the submissions the Court is of the view that
the Rights Commissioner's recommendation should be upheld.
The Court accordingly rejects the appeal and so decides.
Division: Ms Owens Mr Keogh Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD95354 APPEAL DECISION NO. AD6295
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
EASTERN HEALTH BOARD
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation No. BC42/95 concerning a claim for the payment
of key-holding allowance.
BACKGROUND:
2. The worker concerned in the dispute commenced employment with
the Board as a porter in 1981.
In 1992 agreement was reached between the parties for the
payment of a key-holding allowance to porters employed by the
Eastern Health Board in Health Centres in the Dublin area.
In order to qualify for the allowance, the porters name,
address and telephone number must be given to the local Garda
Station and security firm on site if appropriate. The Board
submitted the worker's name to the local Garda Station on
29th July, 1992 and commenced payment of the allowance from
that date.
The Union submitted a claim on behalf of the worker for the
payment of retrospection of the allowance with effect from
December, 1981. Local level discussions took place but no
agreement was reached. The matter was referred to a Rights
Commissioner for investigation and recommendation. The
Rights Commissioner's finding and recommendation are as
follows:-
Findings:
Having investigated the matter and having given full and
careful consideration to the points made by both parties
I have come to the following conclusions:-
1. A clear conflict between the direct evidence of the
worker and the indirect evidence of the retired
Administrator makes my task more difficult.
2. I do not ascribe this conflict of evidence to any
malevolence on the part of either the worker or any
other party.
3. I believe that the Eastern Health Board in
principle has dealt quite fairly with the issue but
there are some unique circumstances which ought to
be taken into account.
*Recommendation:
In the light of the above my recommendation is that the
Eastern health Board make an ex gratia payment of #2,000
to the worker and that this be accepted by her in full
and final settlement of all claims on the employer in
relation to this issue.
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the
Union to the Labour Court on 8th June, 1995 under Section
13(9) of the Industrial Relations Act, 1969. A Labour Court
hearing took place on 24th July, 1995.
UNION'S ARGUMENTS:
3. 1. The worker's name and address has been lodged with the
Bridewell Garda Station since 1981.
2. The worker concerned has fulfilled all the conditions
attached to the key-holding agreement and qualifies for
retrospective payment of the allowance. In the
circumstances the payment of #2,000 net to the worker is
justified.
BOARD'S ARGUMENTS:
4. 1. During the course of the Rights Commissioner's hearing
it was indicated by the Union that the worker had been
called out frequently in emergency situations prior to
1992. The Union also stated that the worker's name and
address was lodged in the Bridewell Garda Station `as
far back as 1981'.
2. The Board has subsequently inspected its relevant time
returns for the period of 1981 - 1992 and has found no
evidence of any overtime payment to the worker in
respect of any call-outs.
3. The Gardai in the Bridewell Station state that they are
unable to confirm that the worker's name has been there
since December, 1981.
4. In order to qualify for the payment of the key
allowance, the porters name, address and telephone
number must be given to the Garda Station/security firm.
The Board informed the Bridewell Garda Station on the
29th July, 1992 of the worker's duties as a key-holder
and commenced payment only from that date.
5. Since the issue of recommendation BC42/95, which stated
that the Board `in principle has dealt quite fairly with
the issue', the Board has accepted this recommendation
as previously stated, despite its view that
retrospection was not warranted in this case. However,
in the meanwhile the Board has tried to remove the
conflict and indirectiveness of its evidence to the
Rights Commissioner at the hearing on 11th April, 1995
and seek that the Court reject the claim for the payment
of any retrospection to the worker in regard to the key
allowance.
DECISION:
Having considered the submissions the Court is of the view that
the Rights Commissioner's recommendation should be upheld.
The Court accordingly rejects the appeal and so decides.
~
Signed on behalf of the Labour Court
24th August, 1995 Evelyn Owens
F.B./D.T. ____________
Chairman