FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TRINITY COLLEGE DUBLIN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal Against Rights Commissioner's Recommendation R-061354-ir-08/JOC.
BACKGROUND:
2. In 2003 an Labour Relations Committee-established committee recommended that the Worker be appointed Senior Technician Storeperson on the Executive Grade I, entering at the 2nd point of the pay scale, with full retrospection effective from 1st October 2001. This dispute arose from the Worker's claim that he should have received payment of Executive Scale 1 retrospective to 1999 instead of to 1st October 2001; he should have retained a 10% special allowance which ceased in 2003; and he should have been placed on a 34.6 hour week with consequential retrospection on his hourly rate of pay to 1999. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 26th March, 2008 the Rights Commissioner issued the following Recommendation:-
- “I find the claimant's case to be well-founded and I am recommending the following on a 'Red Circle' basis;
Claimants (a) and (b) a 35 hour week be applied from date of recommendation and each claimant receive €3,000 in compensation in full and final settlement of their caset”.
Both the Employer and 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 11th December, 2008, the earliest date suitable to the parties.- “I find the claimant's case to be well-founded and I am recommending the following on a 'Red Circle' basis;
UNION'S ARGUMENTS
3. 1. The 'Red Circle' element of the Rights Commissioners's Recommendation rules the Worker out of any future promotional opportunities.
2. The amount of compensation awarded by the Rights Commissioner did not fully take on board the serious financial loss suffered by the Worker.
3.The Worker should have all the terms and conditions associated with the Executive Grade I.
EMPLOYER'S ARGUMENTS:
4. 1. This cost-increasing claim is precluded under the terms of 'Towards 2016'.
2.The Technical Storeperson Grade is not an Executive Grade. There is a pay link between the two grades but the hours of work requirements and annual leave entitlements are different.
3.Concession of this claim would have an obvious knock-on potential for other members of staff with established pay links with Executive and Secretarial Grades.
DECISION:
The case before the Court is an appeal by both parties of a Rights Commissioner’s recommendation which found the claimant’s case well founded and made a recommendation on a “red circled” basis that he should be placed on a 35 hour week and paid €3000 compensation.
There were three claims before the Rights Commissioner, payment of Executive Scale 1 retrospective to 1999 instead of to 1st October 2001; reinstatement of 10% special allowance which ceased in 2003 and introduction of 34.6 hour week with consequential retrospection on his hourly rate of pay to 1999.
The Court has considered the position of the parties as expressed in their oral and written submissions and finds as follows:
Retrospection to 1999
The claim for retrospection arises from the placement of the worker on Executive Scale 1 scale in 2003 following a review by a sub-committee specifically set up to examine his application for promotion from his position on Executive Scale 3.
The Court is satisfied that the worker was re-graded for pay purposes at this time and placed on a scale which was related to Executive Scale 1, referred to by the University as an “Analogue” scale to the “Mainstream” scale, and was in fact higher paid than the “Mainstream” scale.
The Court notes that the worker’s application for promotion in 1999 was rejected by the Technical Review Committee. Therefore, the Court can see no merit in the claim for retrospection back to 1999.
Reinstatement of 10% special allowance
The worker sought reinstatement of a 10% special allowance, which applied to him when he was on Executive Scale 1. The University stated that this allowance was not applicable at this level and that it had been assimilated into his new salary on being appointed to Executive Scale 1 in 2003.
The Court notes that the allowance was assimilated on being appointed to Executive Scale 1 and accordingly sees no grounds for its reinstatement.
34.6hour week
The Union on behalf of the worker sought a reduction in his working week from 39 hours to 34.6 hours per week, which he contended was the norm for his new grade and consequently sought retrospection on the hourly rate of pay to 1999.
The Court is satisfied that the worker’s hours of work are not out of line with other grades on the Analogous Executive Scale 1 and accordingly rejects his claim.
Decision
Based on the Court’s finding outlined above, the Court overturns the Rights Commissioner’s Recommendation and upholds the University’s appeal.
One aspect of the worker’s appeal concerned the Right’s Commissioner’s decision to make a recommendation on a “red circled” basis, for the avoidance of any doubt the Court accepts that the worker’s position was not a “red circled” position and accordingly that aspect of his appeal is upheld.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
6th January, 2009______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.