FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : REHABCARE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Non Payment of Benchmarking
BACKGROUND:
2. This case concerns a dispute between Rehabcare (represented by IBEC) and SIPTU in relation to the application of the third phase of the benchmarking award (25%) to an ex employee of the organisation. The Union's position is that the worker had an expectation that the third phase would be paid on the basis that delays had occurred on the payment of the first two phases yet eventually payments were made.
The Union contends that payment of the increases were due from 1st June 2005 yet were not paid until December 2007. As the worker was in the employment of the organisation on the due date, it is claimed that an enetitlement existed to the payment.
Management's position is that there were specific payment criteria relevant to the payment of the third phase of benchmarking. It contends that prior to payment, a performance verification process had to be accepted and signed up to. Management's case is that as the worker was not part of the performance verification process and no longer in the employment, she is not entitled to payment of the third phase.
On the 10th September, 2008 the worker referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court’s Recommendation. The issues in dispute were then deferred at the request of the Unionand the matter was subsequently heard by the Labour Court on 8th April 2009.
UNION'S ARGUMENTS:
3 1 The worker was in the employment of the organisation when the payment was due to be applied and was entited to receive payment.
2 An expectation existed that the payment would be made as previous phases had incurred delays in payments but were eventually paid.
3 It is unacceptable that the worker be penalised on the basis of management's delay in applying the increases.
COMPANY'S ARGUMENTS:
4 1 There were no specific payment criteria in relation to the application of the first two phases of benchmarking, which were in place for the payment of the third phase.
2The worker was not entitled to payment of the increases as she was not party to the required performance verification process and had not signed up to its acceptance.
3 Concession of the claim would inevitably lead to repercussive and unsustainable claims in the future.
RECOMMENDATION:
The matter before the Court concerns the application of the third and final phase (25%) of Benchmarking Award for a former employee, Ms. B. The award was paid to workers in employment, following negotiations and agreement with the Union, on 6th December 2007.
The claimant resigned from the Organisation on 29th August 2007, prior to the payout date. The employer stated that payment was made only to those workers in employment on 6th December 2007 and in their case a retrospective payment was paid back to 1st June 2005. Towards that end the Organisation negotiated with the Union in respect of those affiliated to it and to those not affiliated, it engaged on an individual basis to ensure individual agreement on the key objectives and achievement of the Performance Verification process.
The Union on behalf of the claimant stated that she had an expectation that she would receive the final payment under Benchmarking, which was due from 1st June 2005 but not paid until 6th December 2007. Her expectation arose principally as the first two phases had each been paid later than the due dates and were paid retrospectively not only to those in employment at the payout date but also to former employees who had left before that date.
Management explained that the terms of the final phase were quite different to the previous two phases and that very strict criteria applied whereby each individual worker was required to personally agree and sign up to co-operate with the Performance Verification process.
The Court understands that following the Union’s ballot and acceptance of the terms on 25th October 2007, the process of paying retrospective monies commenced, however, as it had over 1,000 employees this was a complex substantial task for the Organisation, consequently the process took almost three months before the monies were paid out.
The Court accepts the criteria were very specific in the case of the final phase and that payment of retrospective payments was conditional on individual co-operation with the process. Therefore, the Court does not find in favour of the Union’s claim for the application of such a payment to the claimant as she did not meet the criteria.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th May 2009______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Andrew Heavey, Court Secretary.