FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : AN POST - AND - A WORKER (REPRESENTED BY COMMUNICATIONS WORKERS' UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal Of Recommendation Of A Rights Commissioner R-054734-Ir-07/Jt
BACKGROUND:
2. The issue before the Court concerns a claim by the Union on behalf of its member concerning his entitlements under the Company's income protection scheme. Following the closure of the SDS division of the Company in 2004, the worker was assigned to the Kilbarrack depot. As part of the Transformation Through Partnership Agreement an income protection scheme was set up to protect the previous overtime earnings of staff redeployed. For the first year of the scheme the worker received "top up" payments because of the shortfall in his earnings. In October, 2006 these payments stopped. The Company position is that the income protection scheme was only payable under the terms of the agreement if a worker was making himself available for overtime. The onus is on the worker to enquire about the overtime available. The Union's position is that it is the responsibility of the Company to allocate any overtime.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 8th January, 2009 the Rights Commissioner's issued his Recommendation as follows:
"I have considered the submissions and documentations submitted by both parties. In considering this case I note the claimant did not contact the Cardiff Lane manager in regard to his availability for overtime. As a result he did not receive any overtime. I also note that there was considerable delay in dealing in any meaningful way with the claimant's complaint. Furthermore that it was claimant's union who circulated the staff in regard to the procedures in claiming overtime. I therefore do not find the claimant's claim for overtime payments well founded and therefore it falls. However I do award the claimant €200 for the unnecessary delay in dealing with his complaint."
On the 18th February, 2009 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 15th April, 2009.
UNION'S ARGUMENTS:
3. 1 The worker at all times continued to be available for overtime and performed overtime when requested by his line manager in Kilbarrack. It is Management's responsibility to allocate and authorise overtime.
2 It is unacceptable that the Company ceased payments due and did not make the worker aware of this. It is Management's responsibility to advise staff of the implications of their non availability to do overtime in a timely manner.
3 The Company has not adhered to the agreed procedures and has not dealt with the worker's case in a reasonable timeframe.
COMPANY'S ARGUMENTS:
4. 1 The overtime in the Kilbarrack depot was limited for drivers. They were required to contact the Cardiff Lane Depot, where there was a high level of overtime available, to inform the manager of their availability on a daily or weekly basis. During the period in question, the worker did not contact the garage and therefore did not make himself available for overtime.
2 The worker is currently on a duty which requires him to rotate between day and night shifts. The worker has opted to swap onto permanent night shift. This decision has limited his availability for overtime in Kilbarrack but not for overtime in Cardiff Lane.
3 The Company acknowledges the delay in responding to the Union in relation to the worker's complaint. However, the Company is satisfied that the worker was aware from the early stages of the income protection scheme that he was required to inform the Cardiff Lane depot of his availability for overtime.
DECISION:
Having considered the submissions made by the parties, the Court does not accept that there is validity in the Union's substantive case and does not take the view that the Rights Commissioner's Recommendation should be altered in this respect.
The Court, however, regards the delays in dealing with the matter as excessive and increases the compensation for this to €1000. The Court so decides and varies the Rights Commissioner's Recommendation in this respect only.
Signed on behalf of the Labour Court
Raymond McGee
6th May, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.