FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : USHER INSULATION (REPRESENTED BY BRYNE WALLACE) - AND - A WORKER (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of a Recommendation of a Rights Commissioner R-094471-IR-10/EH.
BACKGROUND:
2. The Worker was initially employed on a temporary basis for a six month period by the Employer, following which he continued in employment until he was made redundant in July 2008. His work consisted of laying attic insulation . He signed in for work at 7am each morning and was allowed to go home when the 'to do' work list was completed, normally between 11.30am to 12 noon each day. The Employee worked between 20 to 25 hours per week and received a flat rate of pay.
Following the cessation of his employment the Worker took a claim to a Rights Commissioner for investigation and recommendation claiming that he had been underpaid and should have been entitled to payment of the hourly rate applicable to a Grade D Operative in the Construction Industry. The Rights Commissioner issued his recommendation on the 10th December 2010 and found that the Worker was not owed any monies and recommended that the claim should fail.
On the 21st December 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 12th April 2011.
WORKER'S ARGUMENTS:
3. 1. The Worker maintains that he worked a 39-hour week and was therefore underpaid. He should have received the guaranteed rate for a Grade D Operative in the Construction Industry.
COMPANY'S ARGUMENTS:
4. 1. The Company maintains that for the entire duration of his employment the Employee worked approximately 20 to 25 hours per week.
2. The Company contends that at no time during his employment did the Worker complain about the salary he was receiving or the rate of pay. furthermore he never attempted to utilise the complaints procedure set out in the Registered Employment Agreement.
DECISION:
The dispute is before the Court by way of an appeal from a Rights Commissioner under the Industrial Relations Act, 1969. Accordingly, the Court is not concerned with interpreting the registered Agreement for the construction Industry nor is it concerned with investigating an alleged breach of that Agreement. Rather, the Court's role is to consider the merits of the dispute and the basis upon which it ought to be resolved.
It seems clear to the Court that the parties entered into a mutually acceptable arrangement in 2005 on the commencement of the Claimant's employment. The Claimant continued in that arrangement without demur during the currency of his employment and only raised the matter now in dispute some time after the employment ended.
From an industrial relations perspective the Court can see no basis upon which it could hold that the arrangement entered into between the parties, and operated to their mutual satisfaction during the continuance of the Claimant's employment, should now be reopened.
In these circumstances the Court upholds the Rights Commissioner's recommendation and disallows the appeal.
Signed on behalf of the Labour Court
Kevin Duffy
19th April 2011______________________
MG.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.