Labour Court Database __________________________________________________________________________________ File Number: CD94599 Case Number: AD9523 Section / Act: S13(9) Parties: BUS EIREANN - and - NATIONAL BUS AND RAIL UNION |
Appeal against Rights Commissioner's Recommendation No. BC258/94.
Recommendation:
The Court, having considered the written and oral submissions
presented, is satisfied that the Rights Commissioner's
Recommendation should be upheld.
The Court, accordingly, rejects the appeal and so decides.
Division: Mr Flood Mr McHenry Mr Walsh
Text of Document__________________________________________________________________
CD94599 APPEAL DECISION NO. AD2395
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
PARTIES:
BUS EIREANN
AND
NATIONAL BUS AND RAIL UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
BC258/94.
BACKGROUND:
2. The dispute arose following the introduction of revised
running times (on the 9th of May, 1994), on the Ballina -
Galway route, which resulted in the loss of earnings for two
drivers. In accordance with the terms of Rights
Commissioner's Recommendation No. BC30/89, drivers with in
excess of 5 years' service are entitled to compensation of
1.5 times the annual loss of earnings. This amount was paid
in respect of one driver. However, in the case of the second
driver, who was due to retire on the 2nd of September, 1995,
the Company was prepared to pay compensation based on his
weekly loss of earnings calculated from the date of
implementation of the revised schedule up to the date of his
retirement. The Union claimed compensation based on 1.5
times the driver's annual loss. The Company contended that
compensation should not exceed the actual loss sustained.
The dispute was the subject of an investigation by a Rights
Commissioner who recommended in favour of the Union's claim.
The Recommendation was appealed by the Company to the Labour
Court on the 1st of November, 1994, in accordance with
Section 13(9) of the Industrial Relations Act, 1969. The
Court heard the appeal on the 28th of February, 1995.
COMPANY'S ARGUMENTS:
3. 1. The Company's offer of compensation in this case must be
considered fair as it would fully compensate the driver
for his actual loss of earnings for the remaining 69
weeks of his employment. This, in fact, would mean that
he would suffer no loss of earnings whatsoever for this
period.
2. The purpose in affording a compensatory payment to a
driver for loss of earnings is to cushion him against a
drop in a permanently established level of pay.
However, in no circumstances should the compensation
exceed the actual amount of loss sustained. The policy
of affording compensation only in respect of real loss
has been supported by the labour Court in
Recommendation LCR11496 (2nd November, 1987) and Appeals
Decision AD13/90 (28th March, 1990).
3. For the 26-week periods before and after 9th May, 1994
the driver's average earnings were #361.67 and #342.97
respectively. It should be noted, therefore, that the
actual weekly loss sustained by him is only #18.70.
Therefore, the Rights Commissioner erred in recommending
that the claim made by the trade union should succeed.
Under no circumstances could a compensatory payment in
excess of actual loss of earnings be merited.
UNION'S ARGUMENTS:
3. 1. The driver is entitled to the same compensation as his
co-worker on this service, irrespective of his age,
health, or predicted future moves.
2. The Company's attempts to reduce the 1.5 times formula,
pro-rata by 9 weeks (the number of weeks short of 1.5
years the worker will remain with the Company) is an
attempt to eliminate the compensatory formula.
3. The Company has erred in equating the number of weeks of
compensation with 1.5 times the annual loss. The latter
does not necessarily mean 78 weeks.
4. If a situation arose whereby the driver did not work out
his full time with the Company (i.e. if he resigned, or
if he became ill, etc.) he would not be required to
reimburse the Company for compensation received on foot
of change to his 'board'.
DECISION:
The Court, having considered the written and oral submissions
presented, is satisfied 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
28th March, 1995 Finbarr Flood
M.K./M.M. _______________
Deputy Chairman