FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY TRANSPORT SALARIED STAFFS' ASSOCIATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioners Recommendation IR 17989/03/LM (Double Appeal).
BACKGROUND:
2. The case before the Court concerns a worker who claims to have incurred a loss of earnings as a result of a new framework for staff deployment and works arrangements introduced by his employer.
The matter was referred to a Rights Commissioner for investigation and Recommendation. Her findings and recommendation issued on the 23rd July 2004 as follows:
- "Having considered the oral and written evidence presented at the hearing, and the additional clerical agreement forwarded by the company subsequent to the hearing (as agreed by both parties). I am satisfied that the loss of earnings due to the claimant to be €6442. This figure is based on the 12 month figure 12th June 2002 to 12th June 2003 of €62,294.65 provided by TSSA and the €59,717.92 adjusted amount as provided by the company.
The sum of €6442 to be paid to the claimant by the company Iarnrod Eireann."
The worker was named in the Rights Commissioners Recommendation
Both parties appealed the Rights Commissioners Recommendation, the employer on 13th August 2004 on the basis that the correct formula had not been used and the union on 27th August 2004,on the basis that the 52 week period used to calculate the loss of earnings was in dispute therefore the amount of compensation was incorrect. The appeal was lodged in accordance with Section 13(9) of the Industrial Relations Act 1969. A Labour Court Hearing took place on 27th October 2004.
The Company acknowledges the merit of the claim by the worker but a confusion exists with regard to the correct formula to be used when calculating the loss of earnings.
The first formula relates to the appropriate compensation payable where loss of earnings occur as a result of the introduction of new working arrangements by the Company, which carries a ceiling of €25,394.76. The second formula relates to losses which occur as a result of other circumstances which carries a ceiling of €14,000.
The Company claims that it is the latter formula which applies in this case.
COMPANY'S ARGUMENTS:
3. 1. The appropriate method of calculating the loss in this case is the formula which applies when there are changes in circumstances which are not incurred as a result of changes brought forward by management. The ceiling for compensation in this case is €14,000.
UNION'S ARGUMENTS:
4. 1. The losses incurred as a result of a change process and a change of duties brought forward by management. In this case the appropriate formula for compensation would have a ceiling of €25,394.76.
DECISION:
Both the Union and the Company appealed the Rights Commissioner's recommendation. The Court considered the views of the parties expressed in their oral and written submissions. The Company indicated to the Court that two different formulae apply in the case of claims for compensation for loss of earnings:-
1. Formula which applies when the Company engage in a change process in the organisation - the formula currently has a ceiling of €25,394.76 (as per Labour Court Recommendation No:16347).
2. Formula which applies other than in a change process, applies in a 'general sense' - the formula currently has a ceiling of €14,000.
Taking account of all the circumstances in this case, the Court is satisfied that the appropriate compensation formula is the latter formula i.e. formula with the €14,000 ceiling. When this formula is applied the resulting calculation exceeds the ceiling, therefore, the Court decides that the claimant should be paid €14,000 compensation for the loss of earnings incurred.
The Court varies the Rights Commissioner's recommendation accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th November, 2004______________________
AH/MB.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.