FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BALLYGOWAN DEVELOPMENTS LTD (REPRESENTED BY WILLIAM FRY SOLICITORS) - AND - A WORKER (REPRESENTED BY BRENDAN ARCHBOLD) DIVISION : Chairman: Mr McGee Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Level Of Compensation
BACKGROUND:
2. The issue before the Court concerns a claim by the worker that the terms of his contract of employment were not fully complied with during his time with the Company. The worker was employed with the Company from June 2006 until July 2008 as a Health and Safety Officer. The worker contends that the Company failed to honour the terms of his contract relating to pay.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 29th May, 2009 the Rights Commissioner issued his recommendation as follows:
"In the claimants contract under the headingRates of pay and Method of paymentit states
- -C. The terms of the REA for the Construction Industry will be observed.
- In the claimants case under the Terms of Employment (Information) Act 1994 the respondents argued a technical breach of the Act. In reading the claimants contract it is my interpretation that it was the respondent's intention to pay the pay awards that arose under the REA to the Claimant as set out in his personal contract. Therefore the REA was being used as a guideline rather than the claimant being aclass of worker in the REA.
I therefore find the claimants case well founded and award the claimant €1,815.39."
On the 18th June, 2009 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 24th September, 2009.
- -C. The terms of the REA for the Construction Industry will be observed.
3. 1 It is clearly envisaged in paragraph 6, clause C of the worker's contract that the wage adjustments provided for in the Registered Agreement would be applied.
2 The Company has failed to honour a term of the contract which they themselves inserted into the contract.
COMPANY'S ARGUMENTS:
4. 1 The worker was not covered by the Construction Industry REA. The insertion of the clause in his contract referring to the REA was done on the recommendation of the Construction Industry Federation to make provision for the possibility that the worker's position within the Company might alter and thereby fall within the scope of the REA. This did not occur.
2 The worker received a salary in excess of the rates of pay provided for in the REA.
DECISION:
The individual contract of employment issued to the claimant states at paragraph 6 as follows:
(a) Your gross salary is €60,000
(b) (not relevant)
(c) The terms of the Registered employment Agreement for the Construction Industry will be observed.
The Company contends that the insertion of this clause was an error. An individual's contract of employment is a very important document and is specific to that individual's job. The Court can only take the contract as it is written, especially as this was taken into account by the Rights Commissioner, and his recommendation was accepted and not appealed by the Company.
On this premise, the Claimant is entitled to the wage increase as outlined in the REA for the Construction Industry. The Court computes these as follows:-
- Base Salary: €60,000:
2% Increase w/e from 1/10/06 to 30/06/07: €900
2.5% w/e from 1/01/07 to 31/12/07: €765
2.5% w/e from 1/01/08 to 23/07/08: €1,660
Total due: €3,325
The Court does not view this as a deliberate or malicious attempt to infringe the claimant's rights and does not therefore make any further award on a punitive basis. The Court upholds the recommendation of the Rights Commissioner but varies the amount to €3,325. The Court so decides.
Signed on behalf of the Labour Court
Raymond McGee
8th October, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.