FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 2004 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN/IRISH RAIL - AND - A WORKER (REPRESENTED BY ANTHONY KERR, B.L. INSTRUCTED BY O'MARA GERAGHTY MC COURT, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Dispute concerning a worker's position and salary.
BACKGROUND:
2. The dispute concerns a worker who commenced employment with the Company in November, 1977 as a structural engineer specialising in composite construction. Within a few years he was promoted to a number of senior posts culminating in his appointment as Manager, Infrastructure Division. In 2001 he applied for and was successful in obtaining a post of Director Infrastructure at the International Union of Railways (UIC) in Paris. The period of secondment was for five years commencing in July, 2001. In a letter to the Claimant dated 14th May, 2001 the Company guaranteed that his salary and other conditions of employment would be maintained and that on termination of his secondment that he would be placed in a post commensurate with his current position, should such a post be available within a CIE Group subsidiary company at that time. In any event he would be placed in a position in a CIE Group subsidiary company and maintain his Head of Department salary level incremented as advised in the letter. The Claimant maintains that the Company made no effort to facilitate his return to comparable employment when his tenure of secondment is due to expire (30th June, 2006) and also that the Company has not updated his salary by reference to any new executive salary reviews since July, 2001. Management rejected the claim. On the 3rd July, 2006 the Claimant referred a complaint to the Labour Court under Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation. A Court hearing was held on the 23rd October, 2006.
WORKER'S ARGUMENTS:
3. 1. Within six months of the termination of his secondment the Claimant wrote to the Managing Director in March, 2006 requesting that he address the question of the Claimant's return to the Company. The Claimant was informed that a senior position in the Company could not be guaranteed to him and that his best option was to seek an extension of his contract at UIC since a senior position within Iarnrod Eireann was not going to be possible. If the Claimant insisted on coming back he might be given some project work if any were available. The Claimant was specifically told that he would not be getting the Director of New Works position. Alternatively the Claimant could consider voluntary severance.
2. Fortunately for the Claimant the UIC Board exceptionally recommended a two year continuation of his secondment, however, technically the Claimant is out of contract with UIC since he has not yet signed a new contract.
3. The Claimant should not be compelled to have to pursue a career outside Ireland, remote from his family who have remained in Ireland. He is entitled to have an appropriate and clear resolution to his current uncertain future so he can organise his life with a greater degree of certainty and avoid the continuation of the unwarranted and unnecessary insecurity which the Company has created.
4. The Claimant is entitled to return to a career with the Company at a commensurate status and salary befitting the Number 2 in its organisation structure. An appropriate title and responsibilities would either be Managing Director Infrastructure or Deputy Managing Director, Iarnrod Eireann.
5. The Company should pay back any money (and consequential pension contributions) due to the erosion of differential in his salary resulting from internal re-organisation since 2001.
COMPANY'S ARGUMENTS:
4. 1. The Company has kept faith with and has fully delivered on the commitments given to the Claimant in its letter to him of May, 2001. His annual salary has fully kept pace, from the commencement period of his secondment with his Senior Executive Management colleagues.
2. Today the Claimant still holds the fourth highest salary measured against the Chief Executive and his direct appointed management colleagues, albeit that the Chief Executive is not an appointed Executive Manager. He is employed on a contract basis. Measured against appointed Senior Executive Managers the Claimant's salary ranking has improved to third highest since 2001.
3. The Claimant's salary prior to secondment has been adjusted in line with adjustments offered to senior colleagues in head of function/department roles. The Claimant has retained his Company car. In addition he has also received a performance bonus in each of the years of secondment . All other ancillary benefits (welfare scheme, GP scheme and travel concessions) have been retained.
4. The Company's letter of 14th May, 2001 made a commitment to the Claimant that on completion of his secondment he will be placed in a post commensurate with his position at date of secondment "should such a post be available within the CIE Group at that time". The commitment to provide a post to the Claimant within Iarnrod Eireann or another CIE Group Company on termination of his secondment, after a now prospective seven years, with retained salary/benefits, whether or not a commensurate post is available, can be considered as generous.
5. Against the backdrop of two significant structural reorganisations within the Company subsequent to the Claimant's commencing his secondment to the UIC in July, 2001 and in addition taking account of the qualified advice regarding reintegration after secondment, which he accepted, wherein it was clearly anticipated that a commensurate post might not be available, not just in Iarnrod Eireann, but within the CIE Group of Companies, the Claimant's asserted entitlement to placement as claimed cannot be entertained.
RECOMMENDATION:
The case before the Court, brought under section 20(1) of the Industrial Relations Act, 1969, refers to the claimant’s contention that the Company failed to properly respond to or deal with urgent contractual matters referred to in its letter dated 8th June 2006. These matter relate to the extension of his secondment from the Company, full restoration and retrospection of his salary in line with the maintenance of a proper differential between him and the Managing Director and his future re-integration at a minimum level of Deputy Managing Director. Counsel for the claimant held that these matters formed the basis of his initial secondment in July 2001.
The Court was supplied with a copy of a letter dated 14th May 2001 from the Managing Director setting out the terms of his secondment, jointly agreed following consultation with the claimant and management.
The Court has given careful consideration to the views of the parties as expressed in their oral and written submissions. The Court notes that an extension of the claimant’s secondment has been agreed and supported by the Company, this is due to expire in June 2008.
The Company for its part, reiterated its intention to abide by the spirit and intent of the terms of the 14th May 2001 letter, however, it does not accept the claimant’s contention that his salary has not kept pace with the normal arrangements applying to Heads of Departments.
Having examined the details of the letter dated 14th May 2001; the Court is of the view that at this point in time, the Company has honoured its commitments therein. The Court does not accept that Benchmarking increases were due to the claimant and is satisfied that his salary has moved in line with comparable grades over the period covered by his initial secondment.
Having assessed the level of restructuring in the organisation and the current management structure, the Court is satisfied that Head of Department is the claimant’s appropriate grade and does not accept the contention that he should now be classified as Deputy Managing Director level.
The Court recommends that discussions should commence in January 2008 to provide for the claimant’s reintegration back into a post commensurate with his current position within the CIE Group, in line with the terms of his secondment, and set out in the letter dated 14th May 2001.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th November, 2006______________________
TODDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Tom O'Dea, Court Secretary.