FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : NATIONAL EDUCATIONAL WELFARE BOARD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Recommendation R-081693-IR-09/JOC.
BACKGROUND:
2. The Worker concerned was employed as Office Manager on a fixed term contract from 8th November 2007 to 7th August 2008. The contract was subsequently renewed until 30th June 2009. The Worker was on a fixed salary and the contract did not provide for the application of national pay awards. In August/September 2008 the Worker approached the Director of Corporate Services and queried the non-application of the pay awards of 1st March 2008 (2.5%) and 1st September 2008 (2.5%) under Towards 2016. In December 2008 the Worker was advised that her salary was high enough and that she would not be receiving the payments.
The Worker referred her case to a Rights Commissioner for investigation and recommendation. The following is the Recommendation of the Rights Commissioner:-
"Based on the lack of clarification surrounding the position on pay increases I am recommending the claimant be paid a once off €1,500 in full and final settlement of her case."
On the 5th March 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, on the grounds that the monetary settlement was substantially less than the amount she was denied. A Labour Court hearing took place on the 17th November, 2010.
UNION'S ARGUMENTS:
3. 1. The Union contends that the Worker should have been awarded €3,000 as this represents more accurately the loss she suffered in not receiving the national pay awards.
COMPANY'S ARGUMENTS:
4. 1. The Board contends that the appointment of the Worker on a fixed term contract on a higher salary, without the pay awards, is consistent with how other fixed term employees were treated.
DECISION:
Having considered the oral and written submissions of both parties the Court accepts that the Appellant was on a salary unique to her individual circumstances and was not on a public sector salary scale, for the duration of her temporary employment. Furthermore, the Court is satisfied that Clause 15 of her contract of employment can be relied upon to demonstrate that for the entirety of her contract there was no provision for a pay review. In such circumstances, the Court accepts that there was no automatic entitlement to national pay awards under “Towards 2016”.
However, as the Rights Commissioner found there was a lack of clarity surrounding this issue when the Appellant made a number of attempts to ascertain her entitlement or otherwise to the pay increases and accordingly the Court upholds the Rights Commissioner’s Recommendation that the Appellant should be paid the sum of
€1,500.00 in full and final settlement of the case. Therefore, the appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th November, 2010______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.