FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : TESCO IRELAND LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY MANDATE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal of a Rights Commissioner's Recommendation r-129648-ir-13/MMG.
BACKGROUND:
2. The Claimant is employed as a a Retail Security Officer by the Respondent. He is seeking payment at agreed premium rates for overtime hours worked which were paid at his standard hourly rate of pay.
- The Employer argues that as a new Retail Security Officer recruited after 2007 was mistakenly paid wages that were 6% in excess of the rate agreed with the Trade Union for this category of worker. It argues that the rate of pay of this grade must be regularised before both sides can properly calculate the amount, if any, due to the Claimant. The Company further argues that the Union has delayed engaging on this matter to date. It asks the Court to treat the matter before it in its full context rather than exacerbate the problem by making an award in isolation to the Claimant.
This matter was referred to a Rights Commissioner for investigation and Recommendation. On the 15th August 2014 the Rights Commissioner issued the following Recommendation:-- The Claimant is pursing from his perspective an individual claim in relation to what he should or should not be remunerated in relation to the correct rate of pay as presented to him by his employer. It is noted that he has indicated that the respondent have accepted previously some difference in his rate of pay and have indicated the potential for reimbursement of a period of 6 months.
The Claimant contends that this is indicative to a total reimbursement.
The Respondent has indicated that in the course of their examination of his original claim that they have recognised perhaps a greater overarching problem not only for himself but for other RSO’s as well in relation to whether they have applied with the correct basic rate of pay from which it is calculable for the appropriate overtime payment.
It is clear that the two matters are not directly compatible in so far as the Company and the Union at national level are apparently in discussions in an attempt to resolve this overarching problem. However this does not give any true or false satisfaction to the individual in the interim.
It is clear that there is an acknowledgement that the calculation of the correct overtime payment for the claimant is acknowledged by both parties and as such it would be my normal recommendation to suggest that these monies should be paid to him and together with full retrospection.
I have appreciated however that the company have indicated that they are attempting to resolve this matter at national level but I am concerned at the amount of time it is taking to achieve same.
It is my recommendation that the company undertakes to redress the overarching situation with the Trade Union involved but if agreement and resolution cannot be found within the next 3 month it would be my recommendation that as of the 1stNovember 2014 calculations should be made on the Claimant’s current and existing rate of pay and pay appropriate back monies in relation to the incorrect payment of his hours as per the ratified agreement indicating how overtime is calculated for employees.
- The Claimant is pursing from his perspective an individual claim in relation to what he should or should not be remunerated in relation to the correct rate of pay as presented to him by his employer. It is noted that he has indicated that the respondent have accepted previously some difference in his rate of pay and have indicated the potential for reimbursement of a period of 6 months.
A Labour Court hearing took place on the 19th March 2015.
UNION’S ARGUMENTS:
3. 1. From the commencement of his employment in May 2008 until it was corrected in mid-2012 the Claimant was not paid the overtime he was entitled to receive. All of his colleagues in the Retail Security Officer grade were paid premium rates for overtime worked or were paid a consolidated rate of pay that was based on premium overtime rates of pay.
2. The Company, at local level, readily acknowledges that the Claimant was not paid correctly and even went so far as to correct his current rate of pay and offer him back pay for six months.
EMPLOYER’S ARGUMENTS:
4. 1. There is an overarching national issue regarding the overpayment of post-2006 Retail Security Officers of which the Claimant is one.
2. In the light of the 6% over-payment the Claimant has received for all hours worked the Claimant has received an overpayment that exceeds the monies due to him under the current claim.
DECISION:
The Court finds that the Rights Commissioner’s Recommendation was fair and reasonable in all the circumstances of this case. The Court affirms the Recommendation and decides accordingly.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
27th March, 2015.Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.