FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DEPARTMENT OF ARTS, HERITAGE & THE GAELTACHT (NATIONAL PARKS & WILDLIFE SERVICE) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Employer incorrectly calculated compensation payment.
BACKGROUND:
2. The Worker is a Foreman in Connemara National Park. In 2010 the Worker brought a case to the LRC regarding loss of earnings due to the cessation of regular and rostered overtime in June 2009. An agreement was reached by both parties and the Worker was to receive a full and final settlement sum covering the years 2006 to 2009. Management however unilaterally sanctioned a lesser sum and this is at the heart of this current dispute.
On the 18th November, 2011 the Union referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 16th May, 2012.
The Union agreed to be bound by the Court’s Recommendation.
UNION'S ARGUMENTS:
3. 1. The Worker's entitlement in respect of the retrospection of pay from the date he was appointed Foreman in 2007 to the date his pay was adjusted in December 2008 amounts to €9,253.07, which includes overtime worked.
2. Therefore, based on the above figures, there is currently a shortfall of €1,286.75 due in compensation
COMPANY'S ARGUMENTS:
4. 1. During the course of the Department calculating the settlement figure of €19,312.11 it came to light that an amount estimated to be €2,573.50 had not been authorised by Personnel. This sum was therefore withheld until an internal investigation was completed.
2. The full sum of €19,312.11 has now been paid to the Worker in full and final settlement of his loss of earnings claim.
RECOMMENDATION:
There is no doubt that the agreement entered into by the parties provided for the payment of€19,312.11 to the Claimant in compensation for loss of overtime. It is equally clear that the amount specified in the agreement was intended to represent actual average annual financial loss calculated over a three year period x 1.5. However the amount agreed was not in fact paid by the Employer. Had the agreement been implemented in the terms agreed there would be little merit in the Union's claim, notwithstanding the apparent mutual mistake in the rates used for calculation.
The amount agreed was not paid to the Claimant at the material time and this failure has indirectly lead to the present claim. Having regard to all the circumstances of the case the Court considers that the opposing positions taken by each side is cogent. In these circumstances the Court is of the opinion that the dispute should be resolved on the basis of a reasonable compromise. In that regard it should be acknowledged that the Claimant agreed to accept the amount specified in full and final settlement of his claim. It should equally be acknowledged that the Claimant did not have the benefit of a part of the settlement figure which, as it transpired, was wrongly withheld.
The Court recommends that the Service should now offer, and the Claimant should accept, a further payment of€500 in full and final settlement of this claim.
Signed on behalf of the Labour Court
Kevin Duffy
2nd July, 2012______________________
JFChairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.