FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : ENTERPRISE IRELAND - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-075906-IR-09/RG
BACKGROUND:
2. In 1981 the worker joined the Irish Goods Council (IGC) as Financial Controller/Secretary. On 1st September, 1991, IGC was dissolved and some members, including the worker concerned, transferred to An Bord Trachtal (ABT) under terms and conditions no less favourable than they held in IGC. On 23rd July, 1998, ABT and Forbairt were dissolved and became Enterprise Ireland. ABT staff also retained terms and conditions. The worker's case is as follows: when he commenced work with IGC the worker was in receipt of a car allowance and a petrol allowance (although he rarely, if ever, travelled.) In 1991 the car allowance was £4,200 and the petrol allowance was £1,500 per annum. Both of the allowances were tax-free until the worker transferred to ABT when the car allowance was taxed and was then worth £3,676. The petrol allowance was replaced with approved mileage rates. As he regarded the two allowances as being part of his remuneration, the worker claims that the changes to the allowances resulted in a reduction in has salary. The worker, whose grade at the time he retired in 2009 was Department Manager (DM), maintains that he should have been placed on the Senior Department Manager (SDM) scale to offset his reduced salary.
The dispute was referred to a Rights Commissioner and her recommendation was as follows:
"On the basis of the written submissions and the evidence provided at the hearing, I find and recommend as follows:
- This issue has been the subject of dispute on sporadic occasions with ABT and Enterprise Ireland from 1993. The only official response provided to the hearing and by way of submission from either ABT or Enterprise Ireland was on 9th January 2009.
- The worker was paid an annual allowance of €4200 car allowance and €1500 petrol allowance by ICG in circumstances where the Claimant by his own admission in his complaint form did not in fact travel. These allowances were not taxed. The Revenue Commissioners decided to tax these allowances. This was not a decision of the Employer.
- All employees are subject to Revenue Commissioner decisions and the employer cannot be held responsible or liable for any resulting decrease in salary, post taxation.
- I do not recommend any adjustment in the final salary scale of the Claimant.
- I do recommend a once off ex-gratia payment of €5000.00 (net) in full and final settlement of his dispute and in compensation for the treatment of the employee where the only formal response to his long running dispute was the letter by (the worker's manager) issued on 9th January 2009, some 16 years after the Claimant first raised his complaint. This sum to be paid to the worker within six weeks of the date of this Recommendation.
(The worker was named in the above recommendation)
The worker appealed the recommendation to the Labour Court on the 15th September, 2009, in accordance with Section 13(9) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 2nd March, 2010.
WORKER'S ARGUMENTS:
3. 1. The worker was in receipt of the allowances for many years and regarded them as part of his normal remuneration. The allowances increased on a regular basis and, as the worker rarely travelled, it shows that they were not related to travel.
COMPANY'S ARGUMENTS:
4. 1 The decision to tax the car allowance was taken by the Revenue Commissioner; it had nothing to do with the Company.
2. The fact that the combination of the worker's salary and allowances was close to the top point of the SDM scale was coincidental. It cannot be used as an excuse to re-grade him to the SDM scale. Concession of the worker's claim for re-grading would have a serious knock-on effect across the public sector.
DECISION:
Having considered the positions of both parties as expressed in their oral and written submissions, in all the circumstances of this case the Court finds that there is no justification in the claim for an adjustment to the worker’s salary. The Court concurs with the findings and conclusion of the Rights Commissioner and, accordingly, upholds her Recommendation.
The worker’s appeal is not upheld.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th March, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.