FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY HENNESSY & CO SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation IR15590/03/MR
BACKGROUND:
2. The claimant, herein referred to as the worker commenced employment with the Department of Posts and Telegraphs in a full time capacity in October 1977 having given intermittent service on a part-time basis from 1972 to 1977. He was appointed as a postman in 1981 and transferred to the employment of an Post when it was established as a Semi State body in January 1984. He retired with effect from the 22nd November 2002 aged sixty years, due to work-related stress. The dispute before the Court concerns a claim by the worker in relation to three unresolved issues: payment for overtime which the worker claims he is entitled to. His pension entitlements, he claims, was calculated incorrectly in that it did not take into account temporary service that he had with the Department in the 1960s and 70s. He further contends that he is due shares under the proposed Employee Share Option Scheme (ESOP) within the Company. Management rejects the claim.
- The matter was referred to a Rights Commissioner for investigation and recommendation. Based on the evidence before him the Rights Commissioner found that the Company followed the agreed procedures for dealing with the volume of work being performed by the worker. He was satisfied that the Company had satisfactorily dealt with the workers claim regarding his pension entitlements in relation to temporary service in the 1970s. He was further satisfied that the Company could not deal with the workers claim for pension entitlements in relation to temporary service in the 1960s due to the lack of records or evidence to prove such service existed. In the matter of entitlements under the proposed ESOP, the Rights Commissioner found that the Company's position is the correct one and that the question of determining whether any individual has entitlements will have to await the establishment of the ESOP. His recommendation issued on the 31st May, 2004, as follows:
- “I therefore recommend that:
- The worker should accept that his claim for additional overtime payment fails;
- The worker should accept that his temporary service in the 1970s has now been properly taken into account in the calculation of his pension entitlements, and that, in the absence of any formal record of his temporary service in the 1960s, no allowance can be made for that service in those calculations;
- The worker should accept that the question of whether or not he will have any entitlement under the proposed ESOP cannot be dealt with at the moment and that the position cannot be clarified until the detailed terms of the ESOP are agreed by the relevant parties at a future date”
The worker was named in the Rights Commissioner’s Recommendation.
On the 6th August, 2004 , the worker appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 6th April ,2005. - “I therefore recommend that:
WORKER'S ARGUMENTS:
3. 1. With regard to overtime payments claimed, the worker's duty was overloaded and he was subject to work related stress which ultimately obliged him to take early retirement. The Company have not argued that the worker did not require this overtime to complete his work on the relevant dates. In the circumstances he should be paid for the work he has done.
2. The worker has not been afforded the 2003 increase in pension payments, nor has he been deemed to have an extra 5-10 years reckonable service due to his retirement on medical grounds. he should be granted the same.
3. The Company do not contend that the worker has not entitlements in respect of the ESOP, rather that the precise details of this entitlement can only be ascertained if and when legislation is enacted. It is the workers contention that it be open to the Court to declare that he has the relevant entitlements subject to the provisions of the relevant legislation.
AN POST'S ARGUMENTS:
4. 1. All of the available evidence indicates that it should have been possible for the worker to complete his delivery route within his scheduled attendance. Where exceptional circumstances did prevail, he was paid overtime. The manner in which the Company dealt with the claim of overloading on the route by the worker is consistent with that which it employs generally to Postperson's delivery routes. The decision to refuse the workers claimed overtime payments is considered fair and justified.
2. The workers pension entitlements were adjusted to take account of his service during the 1970s upon evidence of same and arrears due to him were paid. A comprehensive check of staffing records was undertaken for the period claimed for in the 1960s but no records of service have been found. The Company has always been and remains committed to making further searches if additional information is forthcoming and will credit the worker with the appropriate additional service if it establishes to its satisfaction that such service exists. The matter of the 2003 increase in pension payments relates to the application of increases provided for under the Sustaining Progress Agreement and the Company considers it to be a matter which is not appropriate to be addressed at the hearing.
3. Given that the ESOP scheme has not been established, the terms under which such a scheme applies to employees who were in the service of the Company, at the time the agreement was signed, have not been determined. The workers claim relates to a matter with collective implications and the Company contends that the claim is one appropriate to be addressed when the ESOP is established under the terms of the Transformation Through Partnership Agreement.
DECISION:
The Court has considered at length the very considerable amount of oral, written and photographic evidence placed before it both during and subsequent to the hearing. After due consideration, and noting the level of conviction shown, the Court believes the Rights Commissioner's Recommendation to be fair and just and, accordingly, upholds it and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
31st May 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Joanne O'Connor, Court Secretary.