AD0345

FULL RECOMMENDATION

CD/03/161

APPEAL DECISIONNO.AD0345

(IR10877/02/FL)

INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

BORD NA M�NA

- AND -

A WORKER
(REPRESENTED BY AMICUS-MSF)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Grier
Worker Member: Mr O'Neill

SUBJECT:
1. Appeal of Rights Commissioner's Recommendation IR10877/02/FL

BACKGROUND:

2. The Union states that the worker was seconded to a Task Force dealing with innovation in Bord na M�na in 1989 after having worked in the Company as a Senior Work Study Assistant since 1975. It is claimed that the worker was informed that his conditions of employment would remain unchanged except for a non-superannuated plus payment of £1, 500 per annum. The Union claims that the worker put in long hours while working with the Task Force and was entitled to be paid overtime for this work. He was in receipt of overtime payments prior to his secondment to the Task Force. The Union also states that the worker has not received increases in car allowance or in his monthly subsistence rate.

Management rejected the Union's claim and stated that the plus payment of £1, 500 was to compensate the worker for any overtime worked.

The dispute was referred to a Rights Commissioner for investigation and recommendation. On the 7th February, 2003, the Rights Commissioner issued his Recommendation as follows:-

" I find that the claim is well founded. I recommend that the respondent shall pay the claimant €30, 000.00 compensation and that this shall be in full and final settlement of all outstanding claims in respect of pay, overtime, car allowance,, substance allowance and other allowances, covering the period June, 1989 to the date of this recommendation".
- Management appealed the Recommendation on the 14th March, 2003, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal on the 8th May, 2003.
MANAGEMENT'S ARGUMENTS:

3. 1. The key principle in the Company in relation to the payment for overtime is that the overtime must first be validated and approved, before being submitted for payroll processing within the appropriate time period.2. The claimant, who from his previous experience as a payroll clerk would have been familiar with the process for approval of overtime working before submission for payment, did not abide by this key principle.

3. There is no recollection of the worker's claim that he approached the Chairman of the Task Force in the early days of its activities on this issue. The issue only arose 8 years later in 1997 in the context of discussions on plans to re-deploy the worker.

4. The records submitted by the worker in 1997 indicate that these submission claims were originals and therefore could not have been previously submitted.5. Management is prepared to pay for overtime worked post 1997 provided such payment is offset against the non-superannuated plus payment and excess mileage paid for the period since 1997. The Court is asked to overturn the Rights Commissioner's Recommendation.

UNION'S ARGUMENTS

4. 1. The worker was not asked to accept any change to his conditions of employment when he was seconded to his new post and did not agree to any such change to these conditions.2. The manager of the Task Force was aware that the claimant was working long hours. The worker maintained records of all overtime worked but when a claim was submitted for payment of the overtime it was refused.3. Management continue to refuse to pay the overtime worked and state that the non-superannuated "plus payment" was in lieu of overtime.

4. The worker did not give up his right to be paid overtime in return for the plus payment and is entitled to be paid for the hours worked for the Company.

5. The worker undertook this work in good faith having been assured in writing that his existing terms and conditions of employment were being maintained.

DECISION:

The Court has considered the submissions of both parties.

The Company's position is that when the worker joined the Task Force in 1989, he was no longer entitled to claim overtime pay as the payment of a non-superannuated allowance was made to him in lieu of overtime payments.

The worker indicated to the Court that this was not his understanding of the situation and that in the early days of its activities he approached the Chairman of the Task Force about this issue. He was unhappy with the response, as it did not coincide with his understanding of the situation. This was primarily due to the existence of an appointment letter he received when he was appointed to the Task Force, which made no reference to the non payment of overtime.

From the evidence given to the Court, it would seem that the worker proceeded to 'file away' his overtime claims on a regular basis during the period he was working on Task Force business and in receipt of the non-superannuated allowance. In 1997, when he was being transferred off Task Force work, he sought the payment of overtime for all the period he was 'filing away' his claims.

The Court is of the view that when he was appointed to the Task Force in 1989 there was a certain amount of confusion on the issue of overtime pay due to a lack of clarity in his appointment letter.

However, the Court is satisfied that:-
(a) the chairman of the Task Force clarified the issue when the worker approached him,
and,

(b) that the payment of the non-superannuated allowance was intended to replace overtime payments during the period he was employed on Task Force work.

The Court notes that to settle this matter and against the background of a redeployment offer to the worker, the Company is prepared to pay for"overtime worked post 1997 provided such payment is offset against the non-superannuated plus payment and excess mileage paid for the period since 1997".

The Court determines that in all the circumstances of this claim, in the context of the Company's conditional offer and on condition that normal relations resume, the worker should be paid a sum of €10,000 in full and final settlement of all claims.

The appeal is, to that extent, allowed and the recommendation of the Rights Commissioner is varied accordingly.

Signed on behalf of the Labour Court

Caroline Jenkinson
22nd May, 2003______________________
LW/LWDeputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.