FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner r-069465-ir-08-MH
BACKGROUND:
2. This case is an appeal of Rights Commissioner Recommendation r-069465-ir-08-MH. The issue in dispute concerns a worker employed by Iarnr�d Eireann, who, prior to restructuring within the Company, worked regular rostered overtime over many years. After the restructuring, it is alleged that the majority of available overtime was on an "ad hoc" basis, which, for the most part, due to family commitments, the worker could not avail of. The Union is seeking the appropriate loss of earnings compensation calculable during the appropriate reference period.
Management's position is that there was still significant overtime available post restructuring, which the worker could have availed of to mitigate the loss of regular rostered overtime.
The matter was referred to a Rights Commissioner for investigation. His Recommendation issued on 11th March 2009 as follows:
" The first question in this case is which particular formula is applicable?
It seems to me that the general formula for loss of earnings is the applicable one.
The second question relates to the legitimacy of the respondent's arguments in denying the claimant compensation in line with that formula for her acknowledged losses.
It is clear to me that the claimant has sustained her loss as a result of the loss of structured overtime and that this loss is likely to be ongoing. It is also clear that the agreement concerning loss relates to personal loss only and covers a specified period and a limitation of loss through capping. This is a fair and generally accepted formula.
For the record I note that there were no caveats or pre-conditions entered by either party prior to entering the particular agreement at the Galway booking office.
I recommend that the respondent should pay the claimant the sum of €4, 824.97 (say four thousand eight hundred and twenty four euro and 97 cent) forthwith in compensation per agreement. "
On the 27th March, 2009, the employer appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 17th June, 2009.
COMPANY'S ARGUMENTS:
4 1 There was still significant overtime available post-restructuring which the worker could have availed of. As she did not avail of overtime that became available, she did not attempt to mitigate her loss and it is therefore inappropriate to award compensation for loss of earnings.
2 At no time did the worker approach management to be facilitated with additional overtime that could have suited her personal circumstances.
3 The worker also received an uplift in grade from a Clerical Officer Grade Four to a Clerical Officer Grade Two. As a result of the uplift there was a significant increase in pay and other long term benefits which further reduced the impact of the loss of overtime.
UNION'S ARGUMENTS:
3 1 The worker was unable to avail of "ad hoc" overtime on the basis of her family commitments. It is unacceptable that she be denied the appropriate loss of earnings compensation.
2 An agreement concluded between the parties sets out the compensation that is payable to individuals who have suffered a loss as a result of the restructuring. The worker has incurred a significant loss of earnings, which will be ongoing, and should be compensated in line with the Agreement.
DECISION:
The matter before the Court concerns an appeal by the employer of a Rights Commissioner’s Recommendation, which found in favour of the Claimant’s claim for compensation for loss of earnings in accordance with the Company’s restructuring agreement and awarded her the sum of €4,824.97.
While the employer acknowledged that the Claimant suffered a loss of earnings during the relevant period covered by its loss of overtime formula, it contended that this loss was self-generated, as she could have availed of overtime earnings to mitigate her loss. Furthermore, it stated that the Claimant received an uplift in grading by two grades with a resulting significant increase in salary.
Having considered the submissions of both parties the Court notes that the overtime worked by the Claimant for many years prior to the restructuring was regular rostered overtime whereby she was consistently required to work the following:
•2 hours on Mondays, Thursdays and Fridays;
•4 hours on Saturdays, and
•8 hours every second Sunday
Whereas, post restructuring the only rostered overtime available was as follows:
•5 hours every fourth Sunday
While the records show that a substantial amount of overtime was available post restructuring, the Court accepts the Claimant’s contention that due to her family commitments she could not always avail of it. However, the Court accepts that she did avail of whatever overtime she could during the reference period covered by the Company’s loss of overtime formula thereby making attempts to mitigate her loss.
Therefore, the Court does not find in favour of the employer’s appeal and it upholds the Rights Commissioner’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th July 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Andrew Heavey, Court Secretary.