Labour Court Database __________________________________________________________________________________ File Number: CD94711 Case Number: AD9519 Section / Act: S13(9) Parties: DIA NORM TEO - and - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION |
Appeal against Rights Commissioner's Recommendation No. DC88/94 concerning claim for the restoration of telephone rental.
Recommendation:
The Court does not find grounds have been adduced to warrant
amendment of the Rights Commissioner's Recommendation.
Accordingly the Court upholds the Recommendation and rejects the
appeal of the claimant.
Division: Mr McGrath Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
CD94711 APPEAL DECISION NO. AD1995
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
DIA NORM TEO
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
AND
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
DC88/94 concerning claim for the restoration of telephone
rental.
BACKGROUND:
2. The Company is involved in the manufacture of convector
radiators. It is located in Bunbeg, County Donegal and
employs 60 people.
The worker concerned in this case is employed by the Company
as an electrical supervisor. In addition to his normal
duties the worker is obliged to carry out certain 'call-out'
duties for which he is paid overtime. As part of the
call-out function the Company has paid the worker's telephone
rental for approximately 7 years.
In December, 1992 the Company decided that there was no
legitimate basis for the continued practice of paying the
telephone rental. On 8th December, 1992, a meeting took
place between the Company and the worker. The following was
agreed:-
"(i) The practice of paying his line rental was unfair
to others and would cease forthwith.
(ii) The Company was satisfied that the premiums paid
for each call-out were appropriate compensation
but that in lieu of payment of the phone rental
the Company would increase the 'call-out' fee from
#10 to #15 in addition to the other premiums
applicable."
The Union appealed this decision and discussions took place
between the parties on 28th January, 1993 following which the
Company agreed to pay the rental for one year more. In
January, 1994 the Company confirmed that the January, 1994
rental would be the last the Company would pay.
The Union referred the matter to a Rights Commissioner for
investigation and recommendation. The Rights Commissioner's
findings and recommendation are as follows:-
"The Union subsequently submitted a document from the
claimant stating that he had received 8 calls in 1993
and 12 calls in 1994 from individuals at the plant but
did not specify the nature of the exchanges involved.
Therefore given the spectre of precedence involved for
all other maintenance supervisors employed by the
Company, I believe that the case has to be assessed on
the actual current requirement level of 'call-outs' to
duty and attendant payments and not on the historic
anomaly of the previous payment of the rental or
occasional calls of an unspecified nature between the
claimant and other employees in the Company.
Consequently on those grounds I am satisfied from the
facts presented that the Company were fully justified in
terminating the payment of the worker's telephone
rental, and I therefore recommend that his claim for
it's restoration fails."
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the
Union to the Labour Court on 8th December, 1994 under Section
13(9) of the Industrial Relations Act, 1969. The Labour
Court heard the appeal in Donegal on 15th February, 1995.
UNION'S ARGUMENTS:
3. 1. The Rights Commissioner's recommendation erred in his
reference to the creation of a precedent, should the
Company continue to pay the worker's telephone rental.
The original agreement to install the telephone and pay
the rental was entered into freely by the Company.
2. The payment of the worker's rental has been a condition
of his employment for 7 years. This was accepted by
other members of the workforce and no claims for a
similar payment have been served on the Company.
3. The Company continues to benefit from the existence of
the worker's telephone. In the period 1993/1994 the
worker was contacted by telephone a total of 20 times in
relation to Company business.
4. The Court is requested to decide in favour of the
restoration of the worker's conditions of employment in
full.
COMPANY'S ARGUMENTS:
4. 1. The payment of telephone line rental to the worker was
not a condition of his employment. It was a
discretionary payment which was not paid to other
workers in the same category of employment.
2. The Company's decision to cease the payment in December,
1992 was accompanied by a proposal to increase the
call-out payment to #15. The Company considered this to
have been an agreed position but following
representations from the Union, the Company agreed to
reintroduce the payment for a further 12 months. This
further agreement is unambiguous and in reality was a
benefit to the worker of #120 when in fact he was only
called out on one occasion.
3. The Company's decision regarding the payment of the line
rental is final having regard to (i) the series of
discussions held with the worker and his
representatives, (ii) the agreement reached of 28th
January, 1993, (iii) the implications for consequential
claims from maintenance and other personnel employed and
(iv) the compensation paid by the Company in relation to
call-out generally which is fair and reasonable.
4. The Company has made every effort to conclude this
matter in a reasonable manner.
DECISION:
The Court does not find grounds have been adduced to warrant
amendment of the Rights Commissioner's Recommendation.
Accordingly the Court upholds the Recommendation and rejects the
appeal of the claimant.
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Signed on behalf of the Labour Court
15th March, 1995 Tom McGrath
F.B./D.T. _______________
Deputy Chairman