FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : INTRUM JUSTITIA IRELAND LTD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Dilution and erosion of Terms and Conditions of Employment resulting in a substantial loss of income.
BACKGROUND:
2. The Company is Europe's leading provider of credit management services. It commenced operations in Sweden in 1923 and has continued to expand in Europe since that time. Intrum Justitia Ireland commenced operations in 1999 and acquired the debt collection area of Dun & Bradstreet throughout Europe in 2011. The Company currently employs 57 staff.
The Claimant joined Dun & Bradstreet on 7th February 1978 and transferred to Intrum Justitia through a transfer of undertakings agreement on 1st June 2001. She has been on uninterrupted sick leave since 21st September 2005.
Under the Transfer of Undertakings Regulations 1980 (S.I. 306 of 1980) the Claimant's employment was protected and she along with all members of staff (17 workers) transferred over to the employment of the Company. The Claimant chose not to accept the terms of the Company's handbook and is therefore employed under the terms, conditions and policies of her former employment.
The Company moved operating location from Clanwilliam Terrace, Dublin 2 to Parkwest Industrial Estate, Dublin 12 in October 2002.
The Claimant maintains that her earnings and other conditions of employment deteriorated following the transfer and she has been attempting to seek a resolution to the issues either formally or informally since 2002.
The case was originally brought before a Rights Commissioner in 2003 under the Transfer of Undertakings Regulations but was deemed to be out of time. The Rights Commissioner at the time stated that the internal Grievance Procedures should be followed. A series of meetings took place but no resolution was found. The case was again referred to the Rights Commissioner under the Industrial Relations Act 1969-1990.
In August 2005, a hearing was scheduled before the Rights Commissioner to hear the case under the Industrial Relations Acts. At that forum the Rights Commissioner made an attempt at mediation and a proposal was made by the Company to settle all actions against it, the Claimant rejected the proposal and decided not to pursue the Industrial Relations case as she wished to pursue another case against the Company before the High Court. The High Court action was settled in February 2011.
The Claimant then referred the claim back to the Rights Commissioner, however, as the employer objected the Claimant then proceeded on the 1st July 2011 to refer the claim under Section 20 (1) of the Industrial Relations Act, 1969 to the Labour Court. The Claimant agreed to be bound by the Court's recommendation. A Labour Court hearing took place on the 1st November, 2011.
UNION'S ARGUMENTS:
3. 1. The Union maintains that the Employer had an obligation under SI 306 to maintain the Claimant's terms and conditions of employment. It would seem that their due diligence was inadequate on some issues, a fact which should not have penalised staff. Even if SI 306 does not apply the written assurances of the Company should form the basis of a contract.
2. The Union maintains that it is evident from the evidence supplied that the Claimant enjoyed a higher salary and bonus previously and that custom and practice would dictate that her salary be maintained.
3. The Union contends that despite Company arguments the Claimant has suffered a substantial loss in earnings due to changes in the pay and bonus systems and the necessity to cut her hours due to the Company move to Parkwest.
COMPANY'S ARGUMENTS:
4. 1. The Company maintain that the Claimant has not been disadvantaged since entering its' employ. Within the Company employment salary reviews are based on an annual review, which considers various factors including economic indicators, market rates, individual and business performance. This same system was applied by the Claimant's previous employer.
2. The Company contends that the current bonus scheme in operation in the Company has not directly contributed to any loss in bonus earnings for the Claimant since the transfer of her employment compared to what she would have earned if no transfer of her employment had taken place and the Dun & Bradstreet scheme had remained unchanged.
3. The terms of the Dun & Bradstreet bonus scheme were reviewed annually. Whilst certain components of the scheme remained constant from one year to the next, individual targets and achievement thresholds for making payment varied from year to year. this was confirmed to the Company by way of letter from the Managing Director of Dun & Bradstreet on May 9th 2005. Since the transfer the Company has maintained the Claimant's bonus.
RECOMMENDATION:
The matter before the Court under Section 20(1) of the Industrial Relations Act, 1969 concerns the worker’s claim that she suffered a dilution and erosion of her terms and conditions of employment when she transferred from Dun & Bradstreet Ireland to Intrum Justitia Ireland Limited under a Transfer of Undertakings. The transfer took place in 2001. In 2003 a complaint was made under the European Community (Safeguarding of Employees' Rights on the Transfer of Undertaking) Regulation 1980 (SI 306 of 1980), (hereafter know as “the Regulations”) (which have since been replaced by the 2003 Regulations). As the claim was out of time the Rights Commissioner declined to investigate the matter.
The claim was then processed under the Company’s internal grievance and disputes procedure during 2004/2005. An internal investigation was carried out to ascertain the validity of her grievance. This investigation did not find merit in the Claimant’s claim. In August 2005 the claim was then referred to a Rights Commissioner under the Industrial Relations Act, 1969; however following legal advice the Claimant decided not to proceed with the claim, due to legal proceedings in another forum at the time.
Subsequently in June 2011, the Claimant submitted the claim under Section 20(1) of the Industrial Relations Act, 1969. The Company stated that it was not aware that a claim was outstanding until it received details of the Section 20(1) referral.
The Court is cognisant of the fact that this claim relates back to the period 2001 to 2005. The Court is of the view that due to the passage of time and the Claimant’s decision not to pursue the matter in 2005, that it would be unreasonable for the employer to have to defend the claim at this time. The employer was not culpable for any delay in processing the Claimant’s grievance and by any reasonable threshold the Court concludes that it cannot make any decision on the merits of the claim at this point. Consequently, the Claimant’s claim is rejected.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th December, 2011______________________
MGDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Madelon Geoghegan, Court Secretary.