FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TEAGASC - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-067734-IR-08/RG
BACKGROUND:
2. The worker is employed as a Grade 2 Advisor in Teagasc. He was redeployed into Teagasc in 1992 from the Department of Agriculture and Food (DAF) when the Government decided to wind down the Land Commission. In July, 2006, following a dispute between Teagasc and IMPACT concerning upgrading and a perceived lack of promotional opportunities for a number of people who had transferred into Teagasc, the Labour Court issued recommendation LCR18633 which stated"that the parties should meet with a view to arriving at a position where each of the 14 claimants could retire as Grade III Officers and could enjoy the pension and lump sum entitlements appropriate to workers retiring at that grade".The worker was one of the 14 claimants. However, in August, 2006, Teagasc wrote to the Union stating that the recommendation should only have covered workers who had transferred from ACOT in 1983 and that Teagasc was not aware that the worker concerned was included in the claim. In January, 2008, when it came to implement the recommendation, the parties attended at the Labour Relations Commission (LRC) to reach an agreement and it was decided on 29th January, 2008, that, in principle, LCR18633 would concern the 13 workers. The Union still felt that the worker concerned should have been included but decided to refer his case to a Rights Commissioner whose recommendation issued on the 8th of April, 2009, as follows:
- " I am conscious that there are approximately 250 Grade 1's and 230 Grade 11's who also work in Teagasc and who equally have expectations of promotion. However, I am recommending that the LRC Proposal dated 29th January 2009 be extended to the Claimant for the following reasons (1) he was included in the original list of 14 claimants referred to the Labour Court and the employer did not object to his inclusion until after the Labour Court issued it's recommendation and (2) there was only one person, the Claimant, who transferred to Teagasc in 1992
- This recommendation is clearly a one-off situation and cannot be quoted or used by either party in any other case or situation in the Civil Service or the wider Public Sector.
Teagasc appealed the recommendation to the Court on the 13th May, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 3rd November, 2009, in Carlow.
TEAGASC'S ARGUMENTS:
4. 1. The circumstances pertaining to the worker are not the same as those of the 13 claimants. The worker had no cause for expectation in relation to promotion other than that he could apply for promotion in the normal way. By contrast the issue of promotional opportunities was an outstanding industrial relations matter for the group which transferred to Teagasc in 1983.
2. When it was discovered that the worker had been incorrectly included in the list of 14 names Teagasc contacted the Union to state its objection, stating that he was separate and excluded from the negotiations which took place in 1983.
UNION'S ARGUMENTS:
3. 1. The worker was part of the Union's list of 14 claimants which was referred to the Labour Court and LCR18633 was accepted by both sides. Teagasc made no mention of the worker either at the LRC in 2005 or the Court hearing in 2006.
2. The basis of the claim is that it could be clearly shown that on behalf of all claimants that there was a lack of promotional opportunities available on transfer into Teagasc. The Labour Court ruled on behalf of all 14 claimants based on the evidence presented.
DECISION:
It is clear that the Claimant in this case was included in a list of 14 individuals who formed the subject of the referral to the Court which resulted in Recommendation LCR18633. That Recommendation expressly referred to 14 workers and that included the Claimant.
It is equally clear that the Claimant was not part of the group of 47 workers who transferred from the Department of Agriculture to ACOT in 1983, and subsequently to Teagasc in 1988, whose circumstances were relied upon in advancing the original claim. Teagasc discovered this anomaly after the Recommendation was issued. It raised the matter with the Union at that time and in a subsequent process of conciliation aimed at securing a basis for implementing the Court’s recommendation.
An agreement was reached between the parties which provided for the implementation of the Recommendation in respect of the 13 claimants who met the criterion relied upon by the Union in its original claim. The Claimant was not included in that agreement but it was agreed to refer his claim to a Rights Commissioner.
The clear import of the agreement reached in conciliation was an acceptance that the Claimant’s circumstances were different to those of the other 13 workers and that his inclusion in the original claim was anomalous. The effect of that agreement was to vary, by consent of the parties, Recommendation LCR18633, in so far as it applied to the Claimant, and to deal with his claim as an individual issue. The Court has considered the present claim on that basis.
Having considered all of the arguments advanced in this case the Court is satisfied that the Claimant does not meet the criterion relied upon by the Court in issuing Recommendation LCR18633. In these circumstances the Court cannot see any basis upon which he should benefit from that Recommendation.
It follows that the recommendation of the Rights Commissioner cannot be upheld. Accordingly, the Recommendation of the Rights Commissioner is set aside and the Employer’s appeal is allowed.
Signed on behalf of the Labour Court
Kevin Duffy
19th November, 2009______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.