FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : YVES ROCHER (IRELAND) LIMITED (REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Employer Member: Worker Member: |
1. Appeal against Rights Commissioner's Recommendation DC6/96.
BACKGROUND:
2. The Union's claim for loss of earnings is on behalf of a worker employed as a warehouse operator. The worker alone was responsible for outgoing shipments and other warehouse personnel refused to carry out his duties except for holidays and emergencies. As deadlines for orders had to be met, the worker was allocated all overtime in his area. In November, 1994, the Company introduced shiftwork and a second operator was appointed. The Union claimed that the payment of a shift premium was not adequate compensation for the worker's loss of overtime earnings. It was agreed to defer the claim for compensation for twelve months to monitor the situation. However, the issue could not then be resolved at local level and was referred to a Rights Commissioner for investigation. The investigation took place on 1st February, 1996, and the Rights Commissioner issued his findings and recommendation on 22nd March, 1996, as follows:-
"Following the hearing the Company submitted a shift flexibility
agreement, which provided for payment of compensation for
loss of shift on an agreed formula for the years 1991 to 1993
inclusive and, in subsequent correspondence with SIPTU, the
Union acknowledged that this agreement was valid.
On the basis of the statistics provided, and the agreed criteria
under this agreement, the claimant did not qualify for payment
of compensation during that period and, therefore, his claim is
entirely based on one calendar year in which he worked an
exceptional degree of overtime.
This in my opinion, cannot be considered as a realistic benchmark
for assessment of average earnings over a protracted period and
I, therefore, must recommend that (the worker's) claim fails."
The Union appealed the recommendation on 17th April, 1996, to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on 21st August, 1996, in Cork.
UNION'S ARGUMENTS:
3. 1. All parties involved in the dispute agree that there is a loss of earnings. In 1994 the Company was willing to enter into negotiations on the claim and a waiting period of twelve months was agreed. The worker accepted that his claim would be dealt with reasonably by the Company.
2. The worker facilitated Management by being available on a regular basis to work overtime, while cover was only provided for him during holidays or in emergencies.
3. Compensation of one and a half or two times the annual loss has been awarded by the Labour Court in several similar cases. The Shift Flexibility Agreement submitted by the Company to the Rights Commissioner does not apply in this case.
COMPANY'S ARGUMENTS:
4. 1. The worker was in a unique position in that all overtime in his area was allocated to him. This overtime should have been shared by all warehouse personnel.
2. The shift premium currently paid to the worker is the equivalent of 226 hours overtime at time and a half. Over a period of 5 years, the only year the worker's overtime significantly exceeded 226 hours was in 1994. Overtime earnings during one exceptionally busy year do not establish valid grounds for compensation.
3. As a result of the Company's concern for the worker on health and safety grounds due to the inordinate amount of overtime he worked, he was put on shift and an additional full time worker was employed to cover the heavy workload.
DECISION:
The Court, having considered the written submissions put before it and assessed the supplementary verbal comments made, considers that the last quarter of 1993, together with the 1st three quarters of 1994, should not be included for assessing any loss of earnings in the three preceding years.
The Court finds that the Rights Commissioner's recommendation should be amended and that Management should calculate the loss (if any) and compensate the claimant on the basis of 1 year's loss.
The Court so decides.
Signed on behalf of the Labour Court
Evelyn Owens
10th September, 1996______________________
D.G./D.T.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Dympna Greene, Court Secretary.