FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Of A Rights Commissioners Recommendation R-052030-Ir-07
BACKGROUND:
2. In September 2004, Teagasc and SIPTU reached an agreement on restructuring of two grades, Promotion Grade Technician and Experimental Officer, into an amalgamated grade. The worker held the post of Promotion Grade technician from 1989 to 2004. Due to the nature of his particular job within Teagasc, there was a compulsory overtime requirement at weekends. The new amalgamated grade did not attract overtime and instead offered time-off in lieu as compensation for additional time worked. The parties agreed on the 1st of January 2002 as the effective date for assimilation to the new Amalgamated Grade. Four options of assimilation were given to employees as methods of assimilation. The worker believed he would be at a considerable loss of earnings if he assimilated to the new grade.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 6th February, 2008 the Rights Commissioner issued his Recommendation as follows:
"I have given careful consideration to the details of this case. I have concluded that the only way forward is that the democratic process is accepted and supported.
I recommend that (the worker) accepts the democratic process and honours the agreement made by management and SIPTU on behalf of all the members.
I recommend that Mr McDonnell assimilates onto one of the 4 options available to him and that he does so within six weeks of the date below
I recommend that (the worker) be given an ex gratia payment of €7,500 without any admission or liability on behalf of the employer and in view of the unique circumstances that have applied in this case that cannot be applied to any other employee. This is on the understanding that (the worker) assimilates on to one of the options available to him and that this then brings closure to this claim."
The worker was named in the Rights Commissioner's Recommendation
On the 5th March, 2008 the Council 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 9th July, 2008.
UNION'S ARGUMENTS:
3. 1 Overtime represents approximately 20% of the worker's income. The worker is at the loss of increments which is affecting his pension entitlements, thereby bringing urgency to the need for resolution.
2 The worker is currently at the top of the old scale. If he were to assimilate from a current date, not alone would he be at the loss of incremental credit for a period of six years but would also have suffered an effective demotion when compared with his colleagues who would have achieved the maximum of the new scale at least three years ahead of him and who had not had to work compulsory overtime.
3 It was recognised by the Rights Commissioner that the worker's case is unique. He was the only person for whom overtime working was compulsory and contained in his job description. In 1990 and 1991 his colleague recieved an ex gratia payment based on what he would have earned if he had been paid overtime. He was promoted in mid 1992 with retrospective effect to January 1991, receiving a salary increase. He was not required to repay the ex gratia payment which had compensated him for compulsory overtime working. The precedent thus created should now apply to the worker concerned here.
COMPANY'S ARGUMENTS:
4. 1 The Union unequivocally accepted the terms of the Technician restructuring agreement on behalf of all its members in September 2004. In bringing this claim the Union are clearly choosing to ignore the terms of that agreement. Should this claim be conceded the agreement would be completely undermined and Teagasc would be exposed to approximately 97 knock-on claims from employees in the same situation as the worker concerned.
2. All employees who assimilate onto the new scale will benefit from an increased salary of over €7,000 per annum at the maximum point of the scale. This greatly increases pension entitlements as overtime earned in the old structure does not reckon for pension purposes. They will also benefit from an increased Annual Leave allowance that applies to the new grade.
3 As the Rights Commissioner clearly upheld all of Teagasc's arguments and reinforced the fact that the worker had no case, awarding monetary payments in such circumstances would clearly signal to other parties that they too could make unfounded claims and receive compensation.
DECISION:
Having considered the submissions made to it by the parties, the Court agrees with the reasoning of the Rights Commissioner and decides, in the unique circumstances of this case and on a strictly non-precedential basis, to uphold the Recommendation and dismiss the appeal.
Signed on behalf of the Labour Court
Raymond McGee
23rd July, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.