Labour Court Database __________________________________________________________________________________ File Number: CD95372 Case Number: AD9585 Section / Act: S13(9) Parties: DAIRYGOLD CO-OP SOCIETY LIMITED - and - MANDATE |
Clarification of AD7194.
Recommendation:
The Court is satisfied that there are unusual circumstances to be
taken into account in clarifying this issue.
The Court accordingly finds that the most equitable way to assess
the compensation due is to take the amount of overtime worked in
the 24 months prior to cessation of late night opening-average
same and on that basis pay twice the annual loss.
Division: Ms Owens Mr Keogh Mr Rorke
Text of Document__________________________________________________________________
CD95372 APPEAL DECISION NO. AD8595
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
DAIRYGOLD CO-OP SOCIETY LIMITED
AND
MANDATE
SUBJECT:
1. Clarification of AD7194.
BACKGROUND:
2. In November, 1994 the Labour Court heard the Company's appeal
against Rights Commissioner's Recommendation ST11/94 in which
the Rights Commissioner recommended:-
"I recommend that the Union's claim succeed in principle
and that twice the agreed annual loss is paid. The
payment should be paid in two moieties. Fifty per cent
should be paid immediately and the remainder on 31st
July, 1995, should the late night working not be resumed
by then in each case. If late night working does resume
before this date then the amount paid will be discounted
at a further date should a similar successful claim be
lodged by the Union."
The following is the Court's decision:-
"Having considered the submissions from the parties and
noting that certain products had been transferred from
the Drapery Department to other departments in the shop
which at least was responsible for some drop in the
turnover, the Court is of the view that the Rights
Commissioner's Recommendation is not unreasonable in the
circumstances and therefore should be upheld."
The Union claims that the period used by the Company in its
calculation of the compensation was not a true reflection of
the workers annual loss and referred the matter back to the
Labour Court for clarification. A Labour Court hearing took
place in Cork on 22nd November, 1995.
UNION'S ARGUMENTS:
3. 1. The number of nights worked on overtime in the final
year was not a true reflection of what was regular and
rostered overtime over the previous number of years.
This was due to the transfer of certain products out of
the section over a period of time which coinsided with
the phasing out of the overtime.
2. The Company has refused to accept this position and has
refused to provide information regarding the number of
nights worked in any of the previous years.
SOCIETY'S ARGUMENTS:
4. 1. The Society implemented the Court's decision.
Compensation was paid in accordance with established and
agreed formula for paying such losses. This formula
applies to all sections within Dairygold. The annual
loss is established by comparing the earnings for the
year subsequent to the change with the earnings for the
year immediately proceeding the change. This loss is
paid at twice the annual loss.
2. The Union is seeking that years other than the year
preceeding the change should be taken as the basis for
compensation. This is contrary to established practice
and not acceptable to the Society, which has complied in
full with the Rights Commissioner's and the Court's
ruling on the claim.
DECISION:
The Court is satisfied that there are unusual circumstances to be
taken into account in clarifying this issue.
The Court accordingly finds that the most equitable way to assess
the compensation due is to take the amount of overtime worked in
the 24 months prior to cessation of late night opening-average
same and on that basis pay twice the annual loss.
~
Signed on behalf of the Labour Court
14th December, 1995 Evelyn Owens
F.B./D.T. ____________
Chairman