FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : INDEPENDENT NEWSPAPERS (IRELAND) LIMITED - AND - A WORKER (REPRESENTED BY NATIONAL UNION OF JOURNALISTS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-032572-Ir-05/TB.
BACKGROUND:
2. The appeal concerns a worker who is employed as a sub editor with the Evening Herald on a grade 2 salary scale. The dispute relates to the outcome of an investigation by an agreed third party into complaints made by the claimant and the failure of the Company to address Part 3 of the recommendations which were accepted by both parties. The final paragraph in the findings of the third party reads " any dispute over interpretation of this document should be referred to the undersigned whose decision shall be final". Part 3 of the recommendation of the third party related to the grading of the claimant. In his findings the third party said "subject to satisfactory service in the interval, management should review the grading of the claimant in late April, 2003". The Union claimed that this recommendation was never properly implemented. It sought clarification from the third party as to what was meant when he made the recommendation. In effect the third party recommended that the claimant should be upgraded from grade 2 to grade 3 with effect from 1st July, 2003. Management did not accept this recommendation or interpretation of it by the third party. The dispute was referred to a Rights Commissioner for investigation. On the 28th June, 2005 Rights Commissioner issued his findings and recommendation as follows:
"Findings
In refusing to accept this recommendation of the third party, management are relying on a letter, which they wrote to the third party in February, 2003, following receipt of his findings.
In that letter they did express their reservations concerning the interpretation of the third party being binding on them. This related to a situation where the report of the third party might be rejected by either of the parties involved.
That situation did not arise and therefore the report of the third party was accepted by the parties involved.
Having accepted the report the respondent is now bound to accept the third party interpretation of the report.
Recommendation
I recommend that the respondent company accept the third party interpretation of the report and accordingly should upgrade the claimant from grade 2 to grade 3 from July, 2003".
On the 5th July, 2005 the Company appealed the recommendation to the Labour Court. The Court heard the appeal on the 30th November, 2005.
COMPANY'S ARGUMENTS:
4. 1. The Company reaffirms its right to reject the original third party report on the basis that the substantive meaning and intent contained in the report was significantly altered by the third party, and was not just a matter of interpretation, as the Rights Commissioner viewed it. The next step of the process should have been for the entire matter to be investigated by a Rights Commissioner and not a matter for 'interpretation' for the third party involved.
2. In his findings the Rights Commissioner resolved for himself the Company's acceptance of the original report which, with respect, he cannot establish by stating 'That situation did not arise and therefore the report of the third party was accepted by the parties involved'.
3. The Rights Commissioner's findings completely ignores the fact that the Company rejected the report in its entirety and was entitled to do so, on the basis of the third party's consequential explanation ofintentnot interpretation. Notwithstanding the third party's misunderstanding of the grading system, the third party's role in determining matters of interpretation is, therefore, of no consequence once their report is rejected by either party. It is clear that by their actions both parties originally acted in accordance with the common understanding of 'review'.
4. In accepting the original report- as the Company understood it to mean- the recommendations contained therein more than compensated the claimant for any wrong against him. He has recently had an opportunity to achieve a higher grading but has not made application in the normal fashion for a current vacant grade.
5. The Company has the right to reject the original report and requests the Court to recommend that the entire matter should then be re-investigated by a Rights Commissioner.
UNION'S ARGUMENTS:
4. 1. The Company, having accepted the third party report was obliged to implement the findings. In the event of a dispute over interpretation Management was obliged to accept the findings of the third party arbitrator. The Company refused to accept the third party's binding arbitration and forced a referral to the Rights Commissioner service. The purpose of that hearing was to determine whether the Company acted correctly in refusing to accept the findings and subsequent findings of the third party arbitrator. It is a matter of fact that the third party's recommendations in relation to the timescale for review were ignored.
2. If the Company had any difficulty with the proposition that the third party's interpretation should be final his report should have been rejected. It was not rejected. Both parties accepted the third party arbitrator, based on his record, and the procedure which applied to the process was agreed in advance.
3. There can be no ambiguity about the concept of a final decision. It is not open to either party to accept conditional binding arbitration, subject to an outcome, which either side finds palatable.
4. The claimant is entitled to be upgraded to grade 3 in accordance with the third party's recommendation. The review should have taken place in April, 2003 and it is therefore appropriate that backdating should date to April, 2003. In good faith the Union accepted the findings of the Rights Commissioner, that the upgrading be backdated to July, 2003, with a view to bringing closure to the matter.
DECISION:
The Court has given careful consideration to the submissions of the parties to this appeal.
The Court is fully satisfied that the Rights Commissioner's findings in this mater are correct and that his recommendation is appropriate. Accordingly the appeal is disallowed and the recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
6th December, 2005______________________
todChairman
NOTE
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.