FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WATERFORD CITY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Recommendation r-059080-ir-07/JOC.
BACKGROUND:
2. The Claimant is employed by Waterford City Council for the last 9 years as a Supervisor in the Open Spaces section and his responsibilities include areas such as parks, graveyards and flower beds throughout the City. In order to comply with the Organisation of Working Time Act 1997 the Claimant's overtime hours were curtailed which in turn has had an effect on future calculations regarding his pension entitlements which now would be greatly reduced, as he has less than 3 years' service left before his anticipated retirement date. The type and scope of the mechanism introduced in order to compensate the Worker for his loss of earning and his future pension entitlements is at the heart of the dispute.
The matter was referred to a Rights Commissioner for investigation and Recommendation. On the 23rd June, 2008, the Rights Commissioner issued his Recommendation as follows:
"I am recommending the Claimant's salary including overtime are red circled for the period up to his retirement to ensure the Claimant can receive the maximum from his pension. This Recommendation is without precedent and no way affects the rate of pay for the position going forward".
On the 2nd July, 2008, 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 1st October, 2008.
UNION'S ARGUMENTS:
3. 1. The Worker should be placed on the General Supervisor's pay scale, as promised by a senior member of staff, in order for him to benefit from enhanced pension entitlements and recoup his losses as a result of the overtime reduction.
2. This method would not create a precedent as it was commonly used in similar circumstances in the past resulting in the desired effect both on current pay and future pension entitlements for the employee concerned.
COMPANY'S ARGUMENTS:
4. 1. An employee cannot be compensated for loss of earnings due to a change in statute such as the Organisation of Working Time Act, 1997, Section 15, Weekly Working Hours.
2. Management is willing to adhere to the Rights Commissioner's Recommendation dated 23rd June, 2008, and is willing to take the most beneficial interpretation possible of the Worker's overtime earnings for his pension entitlements.
DECISION:
Having considered the oral and written submissions of the parties, the Court considers that the most appropriate solution to this matter is to award an additional ex-gratia lump sum of €4,500 to the Claimant in full and final settlement of his case.
The Court so decides and varies the Recommendation of the Rights Commissioner to allow for this additional payment.
Signed on behalf of the Labour Court
Raymond McGee
20th October, 2008.______________________
JF.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.