FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY NBRU) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal Of Recommendation Of A Rights Commissioner R-077876-Ir-09/Rg
BACKGROUND:
2. The issue before the Court concerns an appeal of a Rights Commisioner No. R-077876-IR-09/RG. The Worker concerned is employed as a Ticket Checker with the Company since 1996 and reports through the District Operations Structure. The Company also operates a Revenue Protection Unit (RPU) which carries out spot checks on trains and on station barriers. It is an independent from the District Operations Structure. In 2002 the Worker applied for a relief position within the RPU to cover absences. The Union contends that his application was not properly responded to until November 2008. The Company's position is that no such delay took place in dealing with the Worker's application and despite numerous vacancies since he has not applied.
The matter was referred to the Rights Commissioner for investigation and recommendation. On 30th September, 2009 the Rights Commissioner issued his recommendation as follows:
"On the basis of the evidence and written submissions from both parties, I find and recommend as follows:
1. (Worker named) works as a Ticket Checker and is not the most senior checker in Cork. He reports to a District Manager in Cork.
2. The RPU Unit is totally separate to the operations side and has it's own Manager and relief s provided within the Unit.
3. Vacancies are advertised through agreed procedures and the Claimant has not applied for any of these positions since 2002.
4. However (Worker named) has been involved since 2002 in seeking to be listed as a Relief Employee in the RPU. The Company did not satisfactorily address the issue until November 2008 when a (Manager named), Manager of the RPU set out the Company policy in relation to the filling of vacancies in the RPU. As this dispute has been rumbling along since 2002, with no clear response from the Company, I recommend the payment of €2000.00 compensation for this omission.
5. I recommend that this sum be paid to the Claimant within six weeks of the date of this Recommendation."
On the 14th October, 2009 the Company appealed the Rights Commissioners Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act. 1969. A Labour Court hearing took place on 2nd June 2010.
UNION'S ARGUMENTS:
3. 1 The Worker's claim was for access to a relief position which should have existed. This would be consistent with all higher duty grades being relived within the Company.
2 The Worker applied for the position in 2002. It is extraordinary that he did not receive a proper response until 2008. At the very least the Worker has been treated badly in relation to a definitive response to his application.
3 Had a definitive response been forthcoming form the Company, the Worker would have been in a position to challenge any negative response through agreed procedures.
COMPANY'S ARGUMENTS:
4. 1 The RPU was set up to be self relieving. The requirement for relief from the Worker or anyone else within the Operations Structure did not arise.
2 A response to the Worker's application was issued by the Manager of the RPU in December 2002 setting out the position that relief was not required at that time. If there was a requirement in the future for relief to be sourced from outside the Unit he would be contacted.
3 Agreement was reached between the Company and Trade Unions that the RPU Structure is the most appropriate one for business needs going forward. As part of this agreement Travelling Ticket Checkers were given the opportunity to transfer to the RPU. The Worker concerned opted to avail of this opportunity and is currently working with this Unit.
DECISION:
The Court does not accept that the valid basis exists for the award of compensation made by the Rights Commissioner.
Accordingly it is the decision of the Court that the award made by the Rights Commissioner be set aside.
Signed on behalf of the Labour Court
Kevin Duffy
21st June, 2010______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.