FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EASTERN HEALTH BOARD - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR685/99/JH.
BACKGROUND:
2. The dispute concerns one worker who has worked as an attendant in Baltinglass District Hospital since 1981. Since May, 1988, he has worked 55 hours per week, with overtime payments applying to hours worked in excess of 39 per week. The Board has decided to restructure the worker's job, resulting in a loss of earnings to him. The amount of compensation to the worker arising from the loss of earnings is in dispute. The matter was the subject of investigation by a Rights Commissioner who concluded that, by any standard, the loss to the worker was substantial and exceeded the norm in such cases. She concluded, further, that the worker has experienced his current level of earnings for some time and could have expected this to continue for a good number of years. Additionally, she stated that savings that would accrue to the Board were a factor that must be considered. The Rights Commissioner was of the view that the correct calculation of loss should be as proposed by the Board, i.e., based on earnings to date rather than on projected earnings as claimed by the Union.
She recommended as follows:
1. The method of calculation of loss should be that submitted by the Board, adjusted by the 2% due under Partnership 2000;
2. The calculation should be applied to all hours worked by the worker;
3. The calculation based on the foregoing should be one times the annual loss, plus £3,500;
4. The Board should examine whether the Revenue Commissioners would approve any element of this payment as tax-free as it is an agreed restructuring. This being non-permissible, the lump sum to be paid gross;
5. The revised working arrangement to take effect from 1st November, 1999.
The Union appealed the Rights Commissioner's Recommendation, to the Labour Court, on the 5th November, 1999, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 1st February, 2000. This hearing was adjourned to allow the parties to examine the matters of tax relief on any compensation and a new proposed roster. The Court hearing was resumed on the 7th July, 2000, at which it emerged that (1) no tax relief would apply in respect of the worker's compensation (2) the worker would accept the new roster if the Board would increase the offer of compensation and (3) the parties agreed the annual loss of earnings at £7784.
UNION'S ARGUMENTS:
3. 1. The level of compensation proposed does not reflect the enormous loss the worker is expected to endure over the next 25 years, including the negative impact on his pension.
2. The Labour Court has previously recommended compensation in excess of the Rights Commissioner's formula, in respect of the Public Sector. LCR13678 recommends compensation of 2.5 times the annual loss. In Appeal Decision AD9942, the Court increased the compensation offered by a factor of 10.
3. The Rights Commissioner's Recommendation should be amended to reflect, properly, the impact of the loss to the worker.
BOARD'S ARGUMENTS:
4. 1. The compensation recommended is, by all accounts, sizeable and the Board is not in a position to increase it further. The Board remains concerned that, in deriving the figure for one year's loss, hours worked in excess of compliance with the Organisation of Working Time Act, 1997 were considered by the Rights Commissioner.
2. The worker must revert to a 39-hour week from his present 55-hour week. Any reasonable request would be facilitated in devising his new roster.
3. The Board is prepared to accept the Rights Commissioner's Recommendation of payment of £11,253 by way of compensation for the worker's reversion to a 39-hour week.
DECISION:
The Court has taken into account both the written and oral submissions made by both sides. The worker involved in this appeal is being required to change his duty roster. The Court is of the view that the loss of earnings sustained as a result will be substantial and, in all the circumstances of this case, recommends that the Board should pay him compensation of twice the agreed annual loss.
The Court recommends that the worker should accept the new proposed roster and that the Rights Commissioner's recommendation should be amended accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th July, 2000______________________
MK/MKDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.