FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : FEDERAL SECURITY SERVICES LIMITED - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Appeal of Recommendation of a Rights Commissioner r-080796-ir-09/TB.
BACKGROUND:
2. The Claimant commenced employment in August 2003 as a Static Security Guard for Securicor Security. In December 2004 a Transfer of Undertakings (TUPE) occurred when G4s took over the business and again in December 2005 when Federal Security took over. Federal Security Services Ltd was acquired by Noonan Services Group Ltd in July 2009. The case concerns a claim by the Worker that the service increments provided under the terms of his employment contract were not implemented.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 15th September 2010, the Rights Commissioner issued his Recommendation as follows:
"The complaint relates to the non-payment of service increments in 2006 and 2008. It is really based on the provisions of the Transfer of Undertakings Regulations. However, with the passage of time that complaint is no longer sustainable. The claimant has not shown that his overall conditions and terms are now worse than they would have been had he remained under his previous contract.
Recommendation: I do not find in favour of the claimant".
On the 7th October, 2010 the Worker appealed the Rights Commissioners 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 14th April, 2011.
UNION'S ARGUMENTS:
3. 1. All the other terms of employment were transferred except the service increments of which became due in August 2006 and August 2008 under TUPE. The Union has identified a comparator colleague that has received both service increments and details were presented to the Court..
2. The Worker has incurred a financial loss estimated to be in the order of €7,000 when calculated over a 40 hour week
COMPANY'S ARGUMENTS:
4. 1. On transfer to Noonan, the Claimant signed the Noonan terms and conditions of employment, no claim can be sustained with respect to any previous terms by virtue of him entering into this new agreement.
2. By the time the Claimant transferred to Federal in December 2005 he was already earning a rate in excess of the rate that applied under his Securicor contract.
DECISION:
The Court finds that the Worker in this case was employed on a three point service based salary scale. When he was employed by Securicor in 2003 he was placed on the first point of the scale. After 12 months service his salary was due to be increased by 7.5% and by a further 7% after three years service. These increases were in addition to any general pay movements in effect within the company.
It is common case that after 12 months his pay was increased by 7.5% . However his pay was not further increased by 7% after three years service. He raised the matter with his employer but to no avail.
The employment history of the Claimant is complicated by the fact that his original Employer was taken over initially by G4s Ltd in 2004 and subsequently by Federal Security Ltd in 2005. In addition there was quite a number of changes in the personnel department as a result of these takeovers. These developments resulted in this case being delayed whilst each Company in turn sought to integrate the merged operations.
Nevertheless the Court is satisfied that the Worker in this case had an entitlement to a 7% adjustment to his rate of pay with effect from the third anniversary of the commencement of his employment in August 2003.
Decision
The Court upholds the appeal. The Court decides that the pay of the Worker concerned be increased by 7% with effect from the date of this recommendation. In addition the Court decides that the Worker be paid the sum of €6,500.00 in lieu of retrospection.
The Court notes that in recent years the Company has adjusted their pay structure and recommends that the adjustment should also apply to the Worker having implemented the above.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
15th July, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.