FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CAINWHITE CIVILS LIMITED - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Recommendation IR8776/02/GF.
BACKGROUND:
2. The worker concerned was employed by the Company from the 12th of November, 2001, until the 7th of March, 2002, when his employment was terminated. He was employed as a General Operative but he carried out Banksman’s duties.
The dispute before the Court concerns a claim by the Union on behalf of the worker concerned for payment of the Banksman’s rate of pay for the duration of his employment. The Company rejects the claim stating that he was employed as a General Operative and was in receipt of the correct rate of pay.
The issue was referred to a Rights Commissioner for investigation and recommendation. His findings and recommendation issued on the 25th of November, 2002, as follows:-
“I am accepting the claimant’s evidence regarding the role he played while on site. The employer’s representative is at a disadvantage in that he was not employed on the site. I accept his evidence that it was not the Company’s intention to deprive the claimant of the Banksman’s rate, other than the reasons mentioned. I recommend the claimant be paid the outstanding amount.”
The Company appealed the recommendation to the Labour Court on the 9th of December, 2002, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 6th of March, 2003, the earliest date suitable to the parties.
COMPANY'S ARGUMENTS::
3. 1. The job in question did not require a Banksman.
2. At no stage during his employment did he raise the issue regarding his rate of pay, nor did he mention that he had a Banksman’s ticket.
3. The worker concerned was employed as a General Operative and paid the appropriate rate.
UNION'S ARGUMENTS:
4 1. The worker concerned informed the Foreman that he had a Banksman’s ticket.
2. He was unaware of the appropriate rate of pay for a Banksman until some time after the date of the termination of his employment.
3. The worker concerned carried out the duties of a Banksman while on site and is entitled to the appropriate rate of pay.
DECISION:
The Court is satisfied on the evidence before it that the claimant was carrying out Banksman's duties and that he held the necessary qualification to perform those duties.
In the circumstances, the Court is satisfied that in accordance with the industry agreement he is entitled to the Technical Operative Rate (Grade A) and is entitled to be paid arrears of pay in the amount of €950.71.
The Court notes that the claim for payment in lieu of notice was not dealt with by the Rights Commissioner and is not, therefore, before the Court in this appeal.
The appeal is disallowed and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
18th March, 2003.______________________
GB/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Gerardine Buckley, Court Secretary.