FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OFFICE OF PUBLIC WORKS - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Owens Employer Member: Mr McHenry Worker Member: Mr Rorke |
1. Appeal of Rights Commissioner's Recommendation No. DC120/96 concerning claim for restoration of higher grade duty payment.
BACKGROUND:
2. The worker concerned commenced employment with the OPW in January, 1981. He was employed at various locations and in 1983 was appointed as a fitter on the Boyle Drainage Scheme. On the 7th of November, 1994 he was appointed acting foreman and was paid an acting-up allowance.
The Boyle Scheme officially closed on the 24th of November, 1995 and the worker reverted to his post of chargehand fitter with effect from the 27th of November, 1995. With the ending of the works stage of the Scheme a winding-down operation continued during 1995/96. As part of this operation the depot at Ballaghadereen was designated for closure and the headquarters transferred to Ballina. As a result of the termination of the Scheme the worker was given the option of a transfer to Ballina or redundancy. He opted for redundancy and his employment was terminated on the 18th of October, 1996. His redundancy compensation package was calculated on the basis of his chargehand fitter rate. The Union sought the calculation on the basis of the foreman rate. Management rejected the claim and the matter was referred to a Rights Commissioner for investigation and recommendation. The Rights Commissioner's findings and recommendation are as follows:
"It must follow that if this claim had any genuine merit, representations for the retention of the rate should have been made at it's point of termination i.e. 24th November 1995 and not some 8 months later, which seems to suggest the veracity of the employer's case.
I am therefore of the opinion that the belated application was entirely opportunistic, on the claimant's part, on the grounds of probability of having made up his mind to opt for redundancy, he pursued an aspiration to have the higher rate of pay, included for the purpose of calculating his redundancy entitlement, and I estimate that the additional cost to the Office of Public Works to do so, would have been in the region of £800.
Therefore as I can find no substantive grounds whatsoever to justify the worker's claim against the Office of Public Works, I must recommend that it fails".
The worker was named in the Rights Commissioner's Recommendation.
The Rights Commissioner's Recommendation was appealed by the Union to the Labour Court on the 23rd of April, 1997 under Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place in Sligo on the 2nd of September, 1997.
UNION'S ARGUMENTS:
3. 1. The Union rejects the Rights Commissioner's assertion that the worker's claim was opportunistic. The worker found himself in an intolerable position due to the limitations placed on his position in the event of transferring to Ballina.
2. Due to retirement a vacancy existed in 1994 for the position of Mechanical Foreman on the Boyle Scheme. It was decided that the worker concerned would fill the post. Subsequently the Union sought to have the worker's acting-up position revised to that of Mechanical Foreman grade 1. The OPW agreed and the worker was promoted with effect from January, 1995.
3. As part of an agreement between the parties, transfers due to the closure of a scheme are voluntary and an option of redundancy is available for workers who do not wish to transfer. The worker opted for redundancy in view of the position he found himself in through no fault of his own.
4. It is the Union's contention that the worker's redundancy package should have been calculated at the Acting Foreman grade 1 rate. At no time was the Union aware that the position was filled on a temporary basis.
OPW's ARGUMENTS:
4. 1. With the imminent completion of the Boyle Drainage Scheme it was never intended that the vacancy at Mechanical Foreman Grade would be filled on a full-time basis. Filling the vacancy would not have been justified in that context.
2. The worker was offered a temporary assignment to the vacancy on the clear understanding that the position was temporary, as reflected in the fact that he was to be paid an acting-up allowance.
3. The normal method of filling promotional outlets at foreman level within OPW is to advertise the position and for a successful applicant to be chosen by way of competitive interview. Had it been decided to fill this vacancy on a full-time basis, it would have been done through competitive interview and the worker would have been just one of many potential candidates.
4. The worker was never given any indication that his acting-up position was anything other than a temporary arrangement. Following the completion of the Scheme, by virtue of his seniority of service as a Fitter, the worker was one of the few employees who was due to be retained as part of the full-time maintenance workforce.
5. The worker instead opted for redundancy with effect from 18 October, 1996. His Statutory Redundancy was calculated at the ceiling imposed under the Redundancy Payments Acts (£300 a week). The terms of the non-statutory elements of his redundancy package were based on an average of his entitlements over his previous three years service. Accordingly his entitlements took full account of his earnings inclusive of his foreman acting-up allowance during this period.
DECISION:
The Court, having considered the submissions from the parties has concluded that whilst it does not agree with the Rights Commissioner's statement that the claim was opportunistic nevertheless is of the view that the rest of his recommendation should be upheld.
The Court accordingly rejects the appeal and so decides.
Signed on behalf of the Labour Court
Evelyn Owens
1st October, 1997______________________
F.B./S.G.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.