FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IRISH BLOOD TRANSFUSION SERVICE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MLSA) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Recommendation of a Rights Commissioner R-076045-IR-09/RG
BACKGROUND:
2. The worker was appointed to the post of Chief Medical Scientist (CMS) at the Munster Regional Transfusion Centre (MRTS) in March, 2007. There are 8 CMSs in Dublin and 5 CMSs in Cork. The Union claims that the worker was told by the Laboratory Manager that all rota payments (2 allowances, one for evening and one for night) would be paid to him, the same as paid to all CMSs. However in April, 2007, the "evening-duty allowance" was withheld from the worker's wages. The worker raised the issue with his employer but it was not resolved. Management's case is that a number of CMSs in Cork had wrongly received the evening allowance when they were promoted from July, 2003, to July, 2006, as a result of a clerical error. The error was discovered before the worker's appointment in March, 2007, and this is why he did not received the evening allowance. (The allowance has been discontinued since early 2010 and this is accepted by the Union.)
The worker referred his case to a Rights Commissioner and his recommendation is as follows:
On the basis of the evidence and written submissions I find and recommend as follows:
1. There are 8 CMSs in the Dublin Office an by agreement with the MLSA all the CMSs are now in receipt of the night duty allowance only effective from August 2008.
2. There are 3 CMSs remaining in the Cork Office, one of whom only, namely the Claimant is not in receipt of both allowances.
3. I recommend that the Claimant be paid the evening duty allowance effective from his appointment as CMS in 2007. This places the Claimant in the same situation as his colleagues in the Cork Office. It is accepted that if agreement is reached in the ongoing discussions with the MLSA that the evening duty allowance will cease for all CMSs in Cork and in
those circumstances the Claimant will not have a continuing entitlement to the evening duty allowance.
4. I recommend that all back monies due to the Claimant be paid within six weeks of the date of this recommendation.
Theservice appealed the recommendation to the Labour Court on the 9th October, 2009, in accordance with Section 13(9) of the Industrial Relation Act, 1969. A Labour Court hearing took place on the 20th October, 2010, in Cork.
UNION'S ARGUMENTS:
3. 1. The worker was promised the evening allowance when he was appointed to the post of CMS in March, 2007. One of his colleagues who was appointed after him continued to receive all allowances. Agreement between the parties that the allowance would be discontinued in Cork was not reached until March, 2010.
.
SERVICE'S ARGUMENTS:
4. 1. The agreement to pay the night allowance dates from the 1960s. The Service admits that an error was made when the evening allowance was paid to the 3 CMSs in Cork but it could not compound the error by continuing to pay it to the worker. The worker continues to be in receipt of the night allowance. When the error was discovered payment of the allowanceto the 3 workers was discontinued.
DECISION:
The Court accepts that the Claimant was told by his manager that he would receive the allowance now in issue. On that basis, and having regard to the facts that three other Chief Medical Scientists in the Cork office were in receipt of the allowances at the time, the Court believes that he has an entitlement to the amount claimed. In these circumstances the Court believes that the recommendation of the Rights Commissioner is reasonable and should be upheld.
In making this decision the Court is influenced by the unique circumstances of this case, referred to above. Accordingly, this decision of the Court should not be quoted or relied upon as having any precedent value in advancing any other claim by or on behalf of any other party.
The recommendation of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
27th October, 2010______________________
CONChairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran O'Neill, Court Secretary.