FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CORK PROBATION RESIDENCE - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal Of Recommendation Of A Rights Commissioner
BACKGROUND:
2. The Union are appealing the Rights Commissioner's Recommendation on behalf of the worker on the grounds that the compensation recommended is not satisfactory in terms of the loss incurred. The Claimant was successful in a competition for promotion to the new position of Manager with the Company in July 2005. He had worked for the Company for the previous 16 years as a houseparent at the hostel. At the time of his appointment to Manager, the hostel was closed for renovations. The Union's claim is that there was no increase in salary to reflect his new role and responsibilities. The Company argues that the appointment to Manager was made in anticipation of the re-opening of the hostel which failed to occur. The Company further maintains that the Claimant did not carry out the responsibilities of a Manager during the hostel closure, after his success at the interview.
The matter was referred to the Rights Commissioner for investigation and recommendation. On the 19th February, 2008 the Rights Commissioner issued his Recommendation as follows:
"I am awarding the claimant €5,000 in compensation and that discussions take place immediately with the claimant's representatives to be completed within six months to determine the appropriate salary scale for the position and the terms to be implemented from the date of this recommendation."
On the 6th March, 2008 the Union 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 14th May, 2008.
UNION'S ARGUMENTS:
3. 1 The Claimant applied for the position of Manager in good faith with a legitimate expectation that his salary would reflect his role. This expectation was supported by assurances from the Board of Management as from the outset he was instructed by members of the Board to sign any correspondence and cheques "Manager".
2 The Claimant was involved in the procurement process to outfit the new hostel. He also oversaw and managed completion of the new hostel in consultation with the architects, Department of Justice and Works Manager for the building Company.
3 The Claimant always saw his future as Manager at the hostel. The decision to close the hostel and re-open it, but designated to a different type of service, was made subsequent to the Claimants promotion. The Claimant believed that the role of Manager under the re-designated nature of the hostel would be just as challenging.
COMPANY'S ARGUMENTS:
4. 1 During the closure of the hostel the claimant and one other member of staff were retained to assist with the ongoing refurbishment process and to plan for the newly enhanced unit. These were part of the normal duties during the closure period from April 2004 to the appointment as Manager in July 2005 and cannot therefore be proposed as additional responsibilities in the period following July, 2005.
2 Prior to the closure of the hostel, the Claimant was responsible for four full time and a number of part time staff, the care of any young person residing there and the organisation of the hostel itself. Since the closure the Claimant has been managing one staff member and no residents which represents a significant reduction in responsibilities.
3 The duties applying to the post of Manager have not devolved to the post holder. It is not within the authority of the management committee of the hostel to approve salary increases without authority from the Probation Service which in turn is subject to the approval of the Department of Justice, Equality and Law Reform.
DECISION:
In the changed circumstances of this case the Court is of the view that the negotiations recommended by the Rights Commissioner should proceed without delay. The revised salary agreed in this process should apply from the date of the Rights Commissioner's Recommendation and should be reflected in the Claimant's redundancy payment.
The Recommendation of the Rights Commissioner is varied accordingly
Signed on behalf of the Labour Court
Kevin Duffy
27th May, 2008______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.