FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CONNACHT COURT GROUP - AND - A WORKER (REPRESENTED BY BENNETTS SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Appeal of Rights Commissioner's Recommendation IR12110/02/MR.
BACKGROUND:
2. The worker concerned has been employed by the Company for 21 years. In 2001 the Company relocated from Rathfarnham to Wilton Works, Naas Road, Dublin. The worker's terms and conditions of work altered in a substantial and radical way following relocation to Wilton, to which the worker had not given her consent.
Following an initial Rights Commissioner hearing the worker agreed to relocate on terms to Wilton. The Rights Commissioner, at this time, recommended that a comprehensive review of the worker's salary and job content should take place in October 2001. This review has not taken place. Discussions took place between the worker and the Company in an effort to reach a resolution of the issues in dispute. No agreement could be reached and the issues were referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on 16th June, 2003, as follows:-
"Accordingly, I recommend that the worker should accept in full the terms set out in the Company's letter of 17 August, 2001, as clarified in subsequent correspondence from the Company, subject only to her salary being further revised to a fully updated rate of €34,000 per annum, effective from 1 July 2003, or from the date of her formal acceptance of these amended terms, whichever is the later."
(The worker was named in the Rights Commissioner's recommendation).
The worker appealed the recommendation to the Labour Court on 25th July, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 19th November, 2003, the earliest date suitable to the parties.
WORKER'S ARGUMENTS:
3. 1. The worker states that no agreement was ever reached on the terms and conditions of her employment subsequent to the relocation to Wilton. The comprehensive review recommended by the Rights Commissioner in the original recommendation did not take place.
2. The worker states that the terms offered by the Company represent a substantial, radical and fundamental alteration to her terms and conditions of employment.
3. For the purposes of salary negotiation and review the worker is entitled as pursuant to the terms of her Contract of Employment to preserve the status of S.S.C. Nurse.
COMPANY'S ARGUMENTS:
4. 1. The Company has honoured not only the letter but the spirit of the recommendations and findings of the initial Rights Commissioner hearing.
2. The Company is fully prepared to honour the terms of the Rights Commissioner's second recommendation.
3. The Company state that the proposed new duties of the worker do not represent a major alteration to the worker's conditions of employment. The proposed new duties were the subject of negotiation between the INO and the worker. The Company believed they had reached an agreement on these issues.
4. The Company accept the Rights Commissioner's recommendation in relation to salary.
DECISION:
The Court has considered the oral and written submissions of the parties. The employee referred two issues to the Rights Commissioner:-
- the employee had not given consent or agreement to the substantial and radical alteration of her conditions of employment as outlined in a letter from the company dated 17th August, 2001, and as specified in a job description supplied on 16th October, 2001
and
- secondly that a comprehensive review due to take place in October, 2001, as recommended by the Rights Commissioner in a previous recommendation did not take place.
The Company held that the terms as specified in the above mentioned letter and job description were those, which had been the subject of extensive discussions between the parties and constituted an equitable resolution of the issues in dispute. It also held that these discussions had taken on board the comprehensive review as recommended by the Rights Commissioner.
The Rights Commissioner found that the terms outlined, "were reasonable in the circumstances and should have been accepted" by the employee and her representative. He proceeded to recommend that the employee:-
"should accept in full the terms set out in the Company's letter of 17th August, 2001, as clarified in subsequent correspondence for the Company, subject only to her salary being revised to a fully updated rate of €34,000 per annum, effective from 1st July, 2003, or from the date of her formal acceptance of these amended terms, whichever is the later".
The employee' representative appealed the recommendation on the basis that (i) the terms outlined in the Company's letter (followed by the job description and clarification) were not acceptable to the employee and were never the subject of an agreement between the parties and (ii) the recommended comprehensive review was not carried out in October, 2001.
Findings of the Court
The move to the new location in April, 2001 brought about a change to Quality Control requirements within the company. The employee sought redundancy, which was declined by the Company. As a consequence of the move the employee's duties and reporting structures were changed. These changes were reflected in the Company's offer of 17th August, 2001. It is clear to the Court that difficulties arose with the offer at an early stage and that the Company were informed of these. The changes sought were not acceptable to the employee who was of the view that they were substantial while the Company considered them to be minor changes. The issue has been the subject of dispute ever since.
The Court understands the Company's contention that the offer made on 17th August, 2001, which included an offer to increase her salary for the changes sought, had addressed the issues in dispute and expected it to be the end of the matter. However, the facts are that it was not accepted by her or her representatives.
At the Court hearing the Company clarified that the requirement to manage all aspects of quality control relate to the Clean Room/Dispatch area only and that assistance will be required by the Company in critical areas, which the Company are willing to engage.
The Court is of the view that in recognition of the extra duties sought, the Rights Commissioner recommended a further enhancement of her salary. The employee has made it clear to the Court that the extra duties involved are not acceptable at any price. However, she sought the retention of the link with Health Board nursing rates of pay, which the Company proposed to eliminate.
In making it's decision the Court is cognisant of the productivity measures granted in the past and which are due under the Benchmarking exercise for similar grades in the Health Boards.
Decision
The Court accepts that there was no agreement reached in August, 2001 concerning the employee's terms of employment.
The Court also accept that the discussions (16th August, 2001), offer (17th August, 2001), clarification (4th September, 2001and job description (16th October, 2001) constitute a comprehensive review of the employee's position as recommended by the Rights Commissioner in recommendation IR4583/01/MR.
In the absence of an agreement by both parties, the Court does not recommend the elimination of the link with the Health Board rates as sought by the Company, however, it recommends that the *clarified measures should be accepted in return for the retention of these rates.
If this option is not acceptable to both parties, while the Court accepts that a redundancy situation does not exist, the Court recommends that a severance package should be offered to the employee.
The Rights Commissioner's recommendation is varied accordingly. The Court so decides.
* clarified measures, i.e. the details outlined in the Company's letters of 17th August, 2001, 4th September, 2001 and the job description 16th October 2001 - together with the clarification given at the Court hearing on 19th November, 2003, referred to above.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th December, 2003______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.