FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN PORT COMPANY - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation R-095688-IR-10/GC.
BACKGROUND:
2. The case before the Court concerns the Worker's appeal of Rights Commissioner's Recommendation R-095688-IR-10/GC. The dispute relates specifically to the Worker's claim that during the course of his employment as a General Operative with the Company, for a period of time between 2008 and 2010 he carried out duties as a Plumber and was not remunerated in accordance with the appropriate Craftsperson/Technician rates. The Worker returned to his regular General Operative duties in February 2010. The Worker contends that the Company have since refused him the opportunity to carry out plumbing duties and instead engaged in the use of subcontractors to carry out any maintenance and plumbing duties that arise in the absence of the Company's designated Maintenance Technician. The Employer rejects the Worker's claim arguing that while it is recognised that the Worker has previously carried out plumbing duties, he is employed as a General Operative and remains in this position. The Employer further maintains that there is no business requirement for the Worker to carry out any other duties other than those of a General Operative.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 28th January, 2011, the Rights Commissioner issued her Recommendation as follows:
"I recommend that to conclude this matter, as a gesture of recognition that he was performing the duties of a plumber from July 2008 to February 2010, the Claimant be given a once off ex-gratia lump sum of €4,000".
On the 17th February, 2011 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 28th June, 2011. A subsequent hearing took place on 5th September, 2012.
UNION'S ARGUMENTS:
3. 1. During the course of his employment the Worker completed an apprenticeship and became a fully-qualified Plumber in July 2008.
2. The Worker was previously assigned with the task of carrying out plumbing and maintenance duties within the Company, however, he was not remunerated appropriately for doing so.
3. The Worker contends that the Employer unilaterally took the decision to return him to his General Operative duties in 2010 and furthermore have since denied him the opportunity to carry out plumbing and maintenance duties.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer has previously agreed to compensate the Worker for the duties carried out between 2008 and 2011.
2. The Employer is of the view that it was clearly communicated to the Worker that he remained employed as a General Operative at all times.
3. The Employer strongly maintains that it is not in a position to offer any alternative role to the Worker other than that of his currently held General Operative role.
DECISION:
The matter before the Court concerns the Union’s appeal on behalf of a worker of a Rights Commissioner’s Recommendation which recommended that the worker should be paid a sum of €4000 in compensation as a gesture of recognition for the craft duties he carried out between July 2008 and February 2010.
The Union appealed the Rights Commissioner’s Recommendation and sought a higher amount of compensation and sought a commitment from the Company that the worker would be engaged to carry out maintenance duties when it considered the engagement of contractors.
The Court notes that the Company conceded that the worker should have been paid the craft rate when he was carrying out such duties and was prepared to pay him according to the Company’s normal assimilation policy, therefore, it calculated the loss of earnings for the period in question at €2,900 and told the Court that it was willing to accept the Rights Commissioner’s Recommendation to pay €4,000. Furthermore, the Company committed to ensuring that the worker is given opportunities in the future to carry out plumbing tasks when the Company’s Plumber is on leave or absent through illness where the worker has the necessary skills and his manager is prepared to release him.
The Union sought assimilation on the fifth point of the scale to account for the worker’s service (as a General Operative) with the Company.
Having considered the submissions of both parties the Court is of the view that the Company’s assimilation policy was appropriately applied in this case and under all the circumstances upholds the Rights Commissioner’s Recommendation to pay a once-off ex-gratia lump sum of €4,000 in full and final settlement of the claim. Furthermore, the Court recommends that the Company’s commitment to provide the worker with opportunities to carry out plumbing duties in the absence of the Plumber should be honoured by the Company and accepted by the worker.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th October 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.