FULL RECOMMENDATION
) INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : IARNROD EIREANN - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner Recommendation R-138690-Ir-13/EH
BACKGROUND:
2. This dispute concerns the Worker's claim that Iarnrod Eireann failed to comply with a prior decision of the Labour Court. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 20th March, 2014 the Rights Commissioner issued the following Recommendation:-
- "I have carefully considered the lengthy submissions from both parties.
I have noted that neither the Rights Commissioner nor Labour Court specifically and/or explicitly awarded an upgrade to Grade 1.
I have concluded that both SIPTU and Martin Norton had accepted this outcome as confirmed to them in writing on 5th March 2009 by the Director of HR.
I have concluded that had Martin Norton been successful in 2012 in his application for a Grade 1 post he would not have made this complaint.
This has convinced me that he understood that he had not an entitlement to a Grade 1 post.
I have not found any evidence that convinces me that he had an entitlement to a Grade 1 post with retrospection and pension realignment.
I recommend for the above stated reasons that this claim should fail."
On the 23rd April, 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 9th September, 2014.
3. 1. The Worker has been working with the company for over 36 years. In that time he has been promoted on a number of occasions but has not been transferred the appropriate staff pension scheme. This has very serious consequences for the Claimant's pension entitlements and is more urgent as he is approaching retirement age.
2. The Worker has been acting in a supervisory position including chargehand and Facilitator Grade 1 since 1999 and has not been paid the rate of pay appropriate to the grade.
3. When the matter was first dealt with by the Labour Court the Company accepted the Recommendation and entered into discussions with the Union to agree the most effective means of putting it into effect. An agreement was finally concluded which contained a provision by which the Company undertook to transfer the Complainant to the Staff Superannuation Scheme with effect from the date of the Agreement. It has failed to give effect to that provision.
COMPANY'S ARGUMENTS:
4. 1. The Company and the Union concluded an agreement to regrade the Claimant to Foreman Class 2 together with the appropriate rate of pay and terms and conditions of employment that apply to that position.
2. As part of the agreement the Company undertook to move the Claimant to the Staff Superannuation Scheme when the issue of under funding is finally addressed by the Company and the Union. That matter remains outstanding at this time. However the Company remains committed to meeting its obligations to the Claimant when the under funding issue is resolved.
3. That settled the matter and no further issue regarding that agreement was raised by the Claimant in the following five years. In 2013 however, almost 5 years after the Worker was awarded a Foreman's rate of pay he commenced these proceedings. The Company takes the view that this claim therefore is out of time and should not be entertained by the Court.
DECISION:
Having carefully considered the submissions of both parties to this dispute the Court finds that the Claimant is both correctly graded and properly remunerated for the work for which he is employed. However, the Court, noting the relevant 2008 Labour Court Recommendation together with the Company’s letters of 5 March 2009 and 16 November 2012, finds that he should not be denied access to the Superannuation Scheme merely because he exceeded the age of 55 years (the age limit for admission to the Scheme) before the dispute regarding Rule 29(b) has been resolved.
Accordingly, the Court decides that the Claimant be granted access to the Superannuation Scheme with credit for service from 16 November 2012 onwards in accordance with the terms upon which the dispute regarding Rule 29(b) are ultimately resolved.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CO'R______________________
10th November, 2014Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Clodagh O'Reilly, Court Secretary.