FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CORK COUNTY COUNCIL - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner's Decision r-132278-ir-13/JOC.
BACKGROUND:
2. The Claimant, a Driver, is employed by the Council since 1993 and currently based at Victoria Cross Machinery Yard. He is seeking overtime payment for overtime for which he claims he should have been rostered. The Council argue that it is unable to pay for overtime not worked.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 23rd January, 2014, the Rights Commissioner issued his Recommendation as follows:-
"I cannot support the Claimant's case and I uphold the Respondent's position."
On the 4th February, 2014 the Worker appealed the Rights Commissioner's 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 17th April, 2014.
UNION'S ARGUMENTS:
3. 1.The Claimant was prevented from working the overtime by his employer by not abiding by agreements that currently exist. The total hours in question amounts to two hundred and ninety which equates to €4,819.65 of a financial loss.
2.The Council decided to unilaterally cut but not wholly remove the Claimant's regular and rostered overtime.The Union is of the view thatcompensation for the loss is warranted in this case.
COUNCIL'S ARGUMENTS:
4. 1.The Claimant has already had some of his overtime loss offset by other work granted to him and for which he was not rostered.
2. The Council is unable to pay overtime to an employee where he did not carry out the work in question.
DECISION:
This is an appeal by the Union on behalf of a Worker against a Rights Commissioner’s Recommendation which found against his claim for compensation for loss of overtime.
The Union identified four areas where it was alleged that the Claimant lost out on overtime earnings:-
- i.Loss of trip to Galway on 10thApril 2012, loss of 2 ½ hours at 2T and 6 hours at T + ½
ii.Loss of morning overtime during the “Tarring Season” in 2012, loss of 30 hours at 2T
iii.Loss of evening overtime on four occasions in May/June/October 2013, loss of 4 hours at T + ½
iv.Loss of morning overtime during the “Tarring Season” in 2013, loss of 105 hours at 2T
Having considered the submissions of both sides the Court does not find in favour of the Claimant’s claim under (i) above as the Court is satisfied that the Claimant’s loss on that occasion was offset by the Council’s practice of sharing this workload as the Claimant was sent on two trips to Birr in lieu of the Galway trip.
The Court is of the view that the claims under (ii) and (iv) above may be of a collective nature involving other Workers regarding the Tarring Seasons and accordingly should be dealt with as such. Therefore, the Court makes no recommendation on these two claims at this point.
The Court recommends that the claim under (iii) above should be examined further in the context of existing internal agreements and processed accordingly. If it’s found that such internal existing practices (e.g. seniority, etc.) have been breached then the Claimant should be compensated accordingly.
Therefore, the Rights Commissioner’s Recommendation is overturned.
Signed on behalf of the Labour Court
20th May, 2014______________________
JFCaroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.