FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AER LINGUS - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Flood Employer Member: Mr Doherty Worker Member: Mr. Somers |
1. Appeal against Rights Commissioner's Recommendation IR11910/02/JH
BACKGROUND:
2. The worker joined the Company in December, 1988, as an Operative A, the entry grade for operative staff, in the catering department. In September, 1995, she was confirmed as Operative C, a supervisory grade. In October, 1997, the worker applied for, through Company-wide competition, the position of Clerical Grade IV. As a result of Company policy at the time, she moved to the salary point she would have been on if she had joined the Company as a Clerical Operative. The effect of the move was that the worker's salary changed from €17,861.51 to €13,903.35. Grade IV was abolished in 2000 and the worker is now Grade III. The Union's case is that it believes that the worker should be Grade II, and that she has been prevented from applying for promotion to Grade II since 1998. In an effort to resolve the matter internally following a salary administration policy that came into effect in January, 1999, the Company proposed increasing the worker's salary from its current level of €21,617.06 to €24,497.06.
The worker's was one of 7 similar cases referred to the Rights Commissioner's service, and 5 of the workers accepted the Rights Commissioner's recommendation. At the Rights Commissioner hearing, it emerged that, prior to the restructuring of the clerical grade in 2000, a mechanism had existed that progressed Grade IV staff to Grade III following 7 years' satisfactory service. This did not happen in the case of the worker concerned but was applied retrospectively. The Rights Commissioner's recommendation in the present case was as follows:
"It was conceded at the hearing that the worker should have been assimilated on the same basis as Worker A, another claimant, at the time of her transfer from one category to another. She would then have been eligible to apply for a higher position. In the circumstances I recommend that the worker receive the full adjusted salary (with differential) including overtime and other premia plus 50% of the differential between the adjusted salary and the notional salary increase together with 50% of any overtime and premia applying to that scale."
The worker was awarded a total of €15,743.55 compensation. She and Worker A were named in the above recommendation.
The Union appealed the recommendation to the Labour Court on the 14th of May, 2003, in accordance with Section 13 (9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 31st of July, 2003.
UNION'S ARGUMENTS
3. 1. The Company has conceded that the correct procedures did not apply to the worker concerned. This has resulted in ongoing discrimination and inequity.
2. The worker should correctly be on Grade II as her equivalent Grade III colleagues got this elevation.
3. The worker has seen a number of her colleagues, with considerably less service and experience, being promoted to Grade II at a time she was denied the opportunity.
COMPANY'S ARGUMENTS:
4. 1. The worker accepted the terms and conditions when she applied for the Grade IV post in 1997. She is now making a claim over and above that accepted by her colleagues in the Rights Commissioner recommendation.
2. There is no automatic promotion to Grade II. Competitions for that post take place once a year and the worker is eligible to apply.
3. The Company does not believe that the worker has suffered any inequity. Concession of her claim, over and above that accepted by others, would not be just.
DECISION:
From the information supplied to the Court on a number of vacancies available and the number of applications, there was no certainty that the claimant would have been successful with her application.
In the circumstances, the Court finds the Rights Commissioner's approach of awarding compensation in this case to be the appropriate way of addressing the matter.
The Court, therefore, upholds the Rights Commissioner's recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Finbarr Flood
8th September, 2003______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.