FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Recommendation R-037139-IR-05/JH.
BACKGROUND:
2. The dispute involves a claim by a worker who was employed by the Company in late 1999 and continued to be employed until November, 2003. He was made redundant as part of a large group in November, 2003, although he contested this development at the time. The Union contends that his position was further complicated with regard to whether he had applied for vacancies in 2001. The issue was the subject of a Rights Commissioners hearing in November, 2003 in which the Rights Commissioner, in January, 2004 recommended in the worker's favour. The Company indicated they would appeal the Rights Commissioner's recommendation but then withdrew the appeal just before a Labour Court appeal hearing was to take place. The worker was unemployed from 5th November, 2003 to 5th July 2004, a period of 36 weeks. Following a number of meetings, an agreement to settle two issues i.e. (1) Date of the workers appointment, and (2) Date for his seniority within the Company was reached by the parties on the 7th October, 2004. As far as the Company was concerned all matters pertaining to the worker were resolved at that meeting. The worker claims that he still had issues unresolved and referred these to the Rights Commissioner Service for investigation and recommendation, claiming that he should have had full seniority with all rights attached to take account of the four years service prior to his redundancy based on the Rights Commissioner's Recommendation of 2004 and that he should receive compensation for loss of earnings in regard to the period for which he was unemployed. On the 2nd February, 2006 a Rights Commissioner hearing took place. On the 8th March, 2006, the Rights Commissioner issued her recommendation as follows:
- “This is a long running saga. The Claimant did agree terms with the company on the 07th of October, 2004 and it would not be unreasonable to leave those terms in place. However in a final effort to resolve the matter taking account of the very positive impact of the Phil Flynn decision on the Claimant’s situation, I recommend some further compromise to the parties.
- Recommendation
- 1. That the Claimant receive credit for his full service with the company when calculating his annual entitlements.
2. Given all the circumstances and in particular that the company decision not to appeal the Rights Commissioner Recommendation having indicated that they intended to do so, (that) the Claimant receive an ex-gratia lump sum payment of €3,000
3. That all other aspects of the agreement reached on the 07th of October, 2004 still remain unaltered”.
- 1. That the Claimant receive credit for his full service with the company when calculating his annual entitlements.
(The claimant was named in the Rights Commissioners Recommendation).
- On the 3rd April, 2006 the Claimant 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 December, 2006.
UNION'S ARGUMENTS:
3.1 The Union contends that the worker was wronged in so far as the Company refused to acknowledge that he applied for vacancies in 2001 and this was only put right after he was made redundant.
2. The worker was available for work and continued to apply for work within the Company following redundancy and outside the Company also.
3. The Union contends that the loss of earnings the worker suffered is a sizeable one, in the region of €16,741.60, something that he could ill afford. Apart from this he would have missed out on the opportunity of further enhanced earnings by way of overtime.
4. The amount awarded by the Rights Commissioner in her recommendation does not in any way reflect the actual amount he lost.
COMPANY'S ARGUMENTS:
4.1 The Company contends that no applications were received from the worker for the positions advertised in November, 2001 and March 2002. Subsequent searches did not locate the applications the worker claims to have made. This is despite the Company being able to produce applications for other positions the worker applied for.
2. Deviations from agreed appointment procedures within the Permanent Way Department would inevitably lead to ongoing claims from individuals that they applied for positions and should be treated in a similar manner.
3. All outstanding issues were resolved and agreed at the meeting on the 7th October, 2004 and confirmed in writing.
DECISION:
Having considered the submissions made by the parties, the Court upholds the Recommendation of the Rights Commissioner and dismisses the appeal.
The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
8th December, 2006______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.