FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE WEST - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Recommendation r-075660-ir-09/GC.
BACKGROUND:
2. This dispute concerns a reduction in the Worker's pay. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 12th October, 2009 the Rights Commissioner issued the following Recommendation:-
- “I cannot uphold the claim but as a gesture of goodwill, and recognition that the claimant should have been notified in advance of the intention to rectify the error which effectively resulted in a reduction of his pay, I recommend that the HSE pay the claimant the sum of €940 in full and final settlement of the issue”.
- “I cannot uphold the claim but as a gesture of goodwill, and recognition that the claimant should have been notified in advance of the intention to rectify the error which effectively resulted in a reduction of his pay, I recommend that the HSE pay the claimant the sum of €940 in full and final settlement of the issue”.
3. 1.TheWorker received this payment for several years.
2.TheEmployer acted unilaterally when it stopped this payment.
3.The Worker has suffered considerable financial loss.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker was incorrectly overpaid.
2. When this overpayment was discovered it was corrected.
3. The Worker is now receiving the correct payment.
DECISION:
The difference between the parties essentially relates to whether the original agreement was that the rate payable to the claimant should be set at 90% of the craftsmen's or at the General Operative rate plus 10% of the Craftsmen's rate. There is no doubt that the Claimant's rate of pay has previously been calculated by reference to the latter formula. However the only documentation furnished to the Court indicates that the agreement governing the payment of the allowance in issue provided that the appropriate rate was fixed at 90% of the craft rate.
In follows that the arrangement applied to the Claimant was at variance with the relevant agreement and in that sense it was erroneous. The Court concurs with the Rights Commissioner's conclusion that an error of this nature cannot be perpetuated.
In all the circumstances of this case the Court has come to the conclusion that the conclusions reached by Rights Commissioner are correct and that her Recommendation is reasonable. Accordingly the appeal is disallowed and the Recommendation of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
4th March, 2011______________________
JMcCChairman
NOTE
Enquiries concerning this Decision should be addressed to Jonathan McCabe, Court Secretary.