FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BORD GAIS (REPRESENTED BY ARTHUR COX) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner R-084099-IR-09/SR
BACKGROUND:
2. The issue before the Court concerns the appeal of a Rights Commissioner's Recommendation No. R-084099-IR-09/SR. It is the Union's case on behalf of the worker, that unfair restrictions regarding overtime and mileage have been placed upon him and that these restrictions have impacted on his ability to do his job. The Union argues that work volumes for the worker have increased significantly, partly due to the restrictions placed on him and that he has been treated differently to his colleagues.
The Employer's position is that the work load of the worker concerned has decreased in recent times and that it is entitled to put in place certain controls in respect of mileage and overtime to effectively manage costs.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th February, 2010 the Rights Commissioner issued the following Recommendation:-
" I recommend that the employer pay to the claimant 136.50 hours pay as a full and final settlement of all matters in dispute"
On the 19th May, 2010, 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 20th October, 2010.
UNION'S ARGUMENTS:
3. 1 The work volumes in the worker's area has increased significantly. There is no valid reason why the Company introduced restrictions targeted at the worker. The restrictions were not applied fairly across the board.
2 The worker was instructed by Management that he could only work overtime on Thursday and Friday and that it was to be done in the office. Prior to these restrictions the worker carried out overtime on site over a five day period, similar to his colleagues.
3 The restriction of a 60 miles per week limit imposed on the worker has severely affected his ability to do his job. The stress and strain of trying to get work done has caused an inevitable additional work related incurred mileage expense for the worker which he has not allowed to claim for.
COMPANY'S ARGUMENTS:
4. 1 Following the collapse of the construction industry the requirement for the worker to attend customer sites and work overtime has significantly reduced. The worker was advised by Management that if work levels increased then the requirement for overtime and mileage would be reviewed.
2 The worker has not worked the 7 hours pre-approved overtime available to him. The worker has worked on average 3 hours overtime per week. The worker is required to work two days in the office and 3 days are normally worked on customer sites. Management notified the worker that overtime should be worked in the office but that this was not limited to the two days he is based in the office.
3 The controls implemented by Management are proportionate, appropriate and a legitimate exercise of management's prerogative.
DECISION:
The Court has carefully considered the submissions of both parties in this dispute.
Overtime Claim:
The Court is satisfied from the evidence presented to it that there is an overtime control policy in place that applies appropriately to all staff within the Company. The Company pre-approved seven hours overtime per week in respect of the Claimant. The Court finds no basis on which the complainant should be exempted from this protocol.
Overtime in excess of this amount must be approved, in advance, on a case by case basis. Where such a case is made the Company has an obligation to examine and respond to it in a reasonable manner and in good time.
The Complainant said that in his case he was told he could only work overtime on two days each week. The Company denied this. Having reviewed the documentation presented to it the Court finds that there was some misunderstanding in this regard. Accordingly the Court decides that the Complainant be provided with an opportunity to work up the hours that he did not avail of. Arrangements should be put in place to enable him to do this over a reasonable period of time.
The Court further notes that the Complainant was required to return to the office to perform all of his overtime work. Given the nature of his work and the need for him to travel to various locations around the city the Court considers this an unreasonable requirement. The Court finds that the complainant should be given the same scope for working his overtime in the field in the proportion in which he is required to work in the field.
Mileage:
The Complainant submitted that he was confined to 60 business miles per week and that any additional miles were subject to pre-approval on a case by case basis. The Company said this was necessary for cost control purposes and was in line with its assessment of the business needs of the job.
The Court finds that the Company position is reasonable in all the circumstances of the case. Business demands may on some occasions require the Complainant to travel in excess of this amount. In such circumstances the nature of the travel proposed and the business case justifying it should be put to the company in advance for consideration. On its part the Company must reasonably consider the applications made on a case by case basis and give a speedy and comprehensive response to the Complainant outlining its decision and the reason for it.
The decision of the Rights Commissioner is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
10th December, 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.