FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of Recommendation of a Rights Commissioner R-072631-Ir-08/POB
BACKGROUND:
2. The issue before the Court concerns a claim of a Rights Commissioner's Recommendation No. R-072631-IR-08/POB by the Union on behalf of the worker. The Worker commenced employment in 1974 as a craftsman and became a permanent foreman in 1982. In 2000 he became acting Technical Services Supervisor and in 2001. In 2008 his post of Technical Services Supervisor was regraded to Maintenance Manager. It is the Union's claim that the Worker provided an on call and overtime service for 20 years an was compensated appropriately for this. Management terminated this arrangement without agreement. Management's position is that the Worker was informed on numerous occasions to cease doing overtime unless properly sanctioned. He had been regraded as Maintenance Manager and recieved a payment in excess of €20,000.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 10th November, 2009 the Rights Commissioner issued the following Recommendation:-
"I am of the view that the claimant is not entitled to any further compensation for loss of income as he has recieved adequate compensation already and that he should only do overtime a the formal request of his manager or in absolute emergency situations."
On the 26th November, 2009 the Employer 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 26th May, 2011.
UNION'S ARGUMENTS:
3. 1 The worker was in receipt of payments for overtime and on call hours worked for 20 years. The Worker submitted claims for overtime on a regular basis each month, therefore the Union maintain that overtime was regular.Management withdrew this arrangement without agreement.
2 The on call and overtime system was agree between the HSE and the previous Maintenance Manager and Foreman in 1983. This agreement was confirmed again in 2001. The nature of the on call service has been regular and rostered since the early 1980's and remained so until the Worker was instructed to cease providing the service in 2008
3 The new arrangements will not require the Worker to provide an on call service and as a consequence of this his income will be affected. The Union does not dispute the right of the employer to re-organise the on call service but the Worker should be entitled to compensation.
MANAGEMENT'S ARGUMENTS:
4. 1 In 2008 prior to the restructuring of the post of Maintenance Manager, the worker was advised that he was to focus on managing the maintenance service. The HSE did not unilaterally withdraw overtime. An engagement process had been ongoing since April 2007 between the worker and his manager in relation to the change in his role as the Maintenance Manager.
2 There was no rostered overtime or on call arrangement. It was an ad hoc arrangement. The worker continues to ignore Management's request to focus on the management of the service and not to undertake out of hours call outs.
3 The overtime payments made to the worker were not rostered and not reckonable for Superannuation. All the new terms and conditions of his new appointment as permanent Maintenance Manager are reckonable for superannuation.
DECISION:
While the overtime in issue was undoubtedly regular and substantial it was not rostered and contractual. At all times relevant to this claim the overtime was voluntarily undertaken by the Claimant and in disregard of the specific instructions of management not to work overtime.
In these circumstances the Court does not see any basis upon which the payment of compensation could be justified.
Signed on behalf of the Labour Court
Kevin Duffy
16th June, 2011______________________
DNChairman
NOTE
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.