FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : KILKENNY BOROUGH COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appealing Rights Commissioner's Recommendation r-134230-ir-13/JT.
BACKGROUND:
2. The claimant has been employed as a Traffic Warden on the outdoor staff of Kilkenny Borough Council since 1995. Following a claim she has been in receipt of an'eating-on-site allowance' since 1st November 2012 and is seeking that this allowance be backdated to 28th September 2011. The Council disputes the grounds on which the claim for retrospection is based.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 26th March, 2014, the Rights Commissioner issued his Recommendation as follows-
"I have considered the submissions of both parties. I have noted the history of the negotiation of the Allowance and consider that it was conceded to certain categories of employees on a staged basis and cases made at the time.
In regard to the claims made on behalf of all the Claimants at this Hearing, I am not convinced of their merits of these claims and do not find them well founded.
Therefore, they fail."
On the 30th April, 2014 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 29th October, 2014.
UNION'S ARGUMENTS:
3. 1. The Claimant is the only member of the outdoor staff to have taken a half hour lunch break since her commencement in 1995. She was given retrospection from November 2012 after she lodged a claim.
2. The Claimant is entitled to full retrospection of the allowance to the date of the Agreement which is 28th September 2011.
EMPLOYER'S ARGUMENTS:
4. 1It is normal industrial practice in the Council that claims when conceded are effective from the date of claim. There is no significant reason that this practice should be altered.
2. The Claimant submitted a claim for the allowance and the claim was conceded after examination. The terms were applied to the Claimant from 1st November 2012 the date she qualified for the allowance.
DECISION:
The appeal before the Court concerns a claim by the Union on behalf of a worker for retrospective payment of an eating-on-site allowance backdated to 28thSeptember 2011. The payment was conceded to her in February 2013 backdated to 1stNovember 2012 when it was accepted that she qualified for the allowance. The Rights Commissioner did not find in favour of the Claimant's claim as he found that the allowance was conceded on a staged basis to certain categories of employees who made claims for application of the allowance at different times.
The Claimant is employed by the Council as a Traffic Warden. The Union submitted that the allowance should have been backdated to 28thSeptember 2011 when it was first introduced for outdoor staff who changed their hours of work. This change introduced a half-hour lunch break which attracted an eating-on-site allowance of €1.90 per day. It stated that the Claimant should have been paid the allowance as she worked as a member of the outdoor staff since the allowance was introduced.
Management stated that initially the change in hours with the application of an eating-on-site allowance was only introduced for a small number of Road Workers and was later extended to other categories who satisfied the conditions for payment and following an examination of claims from others, including the Claimant, the allowance was extended to them from their claim dates as is normal practice.
Having considered the submissions of both parties the Court is of the view that the Claimant met the criteria for the application of an eating-on-site allowance since it was introduced in September 2011 and accordingly she should be paid the claimed retrospection.
Therefore the Court recommends that the Claimant should be paid for the loss of the eating-on-site allowance sustained in the period from 28thSeptember 2011 until 31stOctober 2012 as claimed by the Union. Accordingly, the Court overturns the Rights Commissioner’s Recommendation and finds in favour of the Union’s appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th December 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.