FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KILDARE COUNTY COUNCIL (REPRESENTED BY THE LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-125152-ir-12/JT.
BACKGROUND:
2. The Claimant was medically declared unfit for heavy work in 2011 and was transferred to lighter duties. While working in the Roads Section he was in receipt of regular rostered overtime. There is no overtime available in the new position. The Claimant is claiming for the loss of overtime earnings. The Employer rejects the claim.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 21st November 2012, the Rights Commissioner issued Recommendation in the as following terms:-
"I have considered the submissions of both parties. The facts of the case are that the Claimant cannot perform the job for which he was originally employed. Therefore the Respondent could legally terminate the Claimant's employment or retire him on ill health grounds. Instead, they facilitated him with lighter duties to accommodate his condition. I find this claim for loss of earnings completely without merit and it fails."
On the 7th January, 2013, 2009 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 11th April 2013.
UNION'S ARGUMENTS:
3. 1. Prior to his transfer to the Graveyards Section the Claimant was in receipt of regular rostered overtime and driving allowance with Naas Town Council. There are no such allowances available now to the Claimant who has calculated his annual loss to be in the region of €6,000.
2. These allowances had become institutionalised by any reasonable definition. Where such a loss has occurred it is common practice that the Worker beawarded a buy-out of 1.5 times the annual loss.
COMPANY'S ARGUMENTS:
4. 1. In February 2007 the Claimant's Orthopaedic Surgeon wrote to the Council requesting lighter duties for the Claimant. The Council Engineer and Foreman facilitated the request. In May 2011 a vacancy was identified in the Graveyards Section and the Claimant agreed to be transferred on a trial basis to the post of Burial Ground Caretaker. Subsequently he was assigned to that post on a permanent basis.
2. The decision to transfer was in the Claimant's favour and allowed him to remain at work rather than be retired on the grounds of ill health. The Council cannot be held liable to compensate for any loss suffered in consequence of his medical condition.
DECISION:
The Court finds merit in the Union’s arguments. However, the circumstances in which Management transferred the Claimant in this case do not support the claim for compensation for loss of earnings that is before the Court.
Accordingly the appeal is rejected.
Signed on behalf of the Labour Court
Brendan Hayes
2nd July, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.