Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00011910-001

15/06/2017

The worker is employed as a Process Area Manager. He has   been employed since 1978. He is paid €2,582.74 per fortnight. He has claimed   that he is entitled to an allowance since 2001. He is now seeking a buyout of   that allowance in accordance with a company agreement.

In 2013   both the Worker and a colleague appealed a Rights Commissioners   Recommendation to the Labour Court, regarding the loss of a local   productivity allowance when they were promoted in 2000/2001. When they got to   the Court to present their case they discovered that the case only involved the   Respondent versus the named colleague. The Court issued its finding in   January 2014 (CD/13/362 -No. AD14105) the Worker then had to make a separate   claim to the Court.

Before his   hearing began in June 2014 the Chairperson of the Court issued an apology   stating that it was due to an error of the Court that his case was not heard   at the same time as the other case. The

Chairperson   then issued a second apology stating that it had received correspondence from   the Respondent. He didn’t remember exactly what was stated in the Respondent’s   letter but he thought the Company who had begun an IR process with the union   regarding the retention of the local productivity allowance in error by other   employees, were willing to recognize the similarities between his claim and   that of other person, wanted to comprehend his claim in the context of that   IR process. The Court stated that as the Labour Court process was initiated   it had to be completed. He made his case on the day which was identical to   that of the other person. The Court issued its Decision on 25th of June 2014   (CD/14/105 - No. AD1446). The IR process between the union and the Company   ended up in the Labour Court on 10th of March 2017. A Decision was reached on   30th of March 2017. (CD/17/9 - No. LCR21422). On foot of this decision he   wrote to the Director of HR stating that he should be included in the buyout   of the allowance. He stated that the Court Decision in CD/14/105 found in   favour of nobody and that as his claim was to be comprehended by the outcome   in CD/17/9

-   LCR21422 did not recommend the restoration of the allowance to any manager so   he was entitled to nothing. He contacted the Court and asked for advice on   this issue. He was told that as 10th of March hearing concerned the union and   the Respondent the outcome could only be questioned by the parties involved.   However, the Court did advise that he could lodge his claim again to the   Court. By the time the other claim was heard by the Court, the other person had   taken an early retirement package. He was given the full retrospection of the   allowance back to 2000. If the Complainant’s case had been taken with that   other case and the Court apologized for its

error in separating both cases, it is inconceivable that the Court   could find in favour of the other person and find against him. The case on 10^th   of March 2017 concerned 11 named employees who the Company stated had held   the Allowance after promotion in error. He was not one of the 11 named   employees and the particular details of his case were not put before the   Court at that hearing. The particular details of his case and supplementary documents   which were backed up by not one but two Collective Agreements were considered   by the Court in the other case and the Court decided that the Claimant`s case   is well founded. He simply asks to be given the same opportunity to present   my case as it should have been heard before any decision was reached in full   and final settlement by the Court on the 30th of March 2017.

He is seeking retrospection to 2001, same as the other named person   and the buyout as per the Labour Court decision.

This grievance relates to a productivity allowance that is   not pensionable, that employees retained in error. This matter has been to   three Labour Court hearings with the latest a binding recommendation. In   April 2013, the Worker and a colleague brought a case to the Rights   Commissioner Service. The Commissioner did not uphold the claim. It was   appealed to the Labour Court and the colleague was the sole appellant. The   Court decided in AD14105, that his case was distinguished from all others   pending the standardisation and regularisation process. The Worker took a   case to the Labour Court and in its decision AD1446 it stated, “The Court understands that whatever the   outcome of those talks the Company undertakes to comprehend this claim within   the terms of the settlement that finally emerge”.

A third Labour Court binding recommendation stated, “The allowance being paid to eleven   managers should be bought out on a compulsory basis.In the exceptional circumstances of this case the buyout should be at   the rate of 2.5 times the annual value of the allowance. This buyout of the   allowance in this manner is limited to those Managers who are currently in   receipt of the allowance and is in full and final settlement of all claims   associated with cessation of the allowance for managers.

This has been a protracted issue spanning many years and   the services of the LRC and Labour Court.   In the first Labour Court decision it referred to the “less than consistent approach taken by   different department within the company”. It is now important for the   Company to maintain its adherence to fundamental starting pay regulations.   The Company believes that correct procedures should be the foundation of any   standardisation, notwithstanding historical errors in allowing overpayments.   The union wished to compound the matter by including everyone in the payment.   The Court recommended a buyout of allowances that did not allow further   claims. The two parties to the collective agreements that brought about the   various allowances, accepted the Labour Court’s findings of 30^th   March 2017. In April 2017, the HR Director outlined its position to the   Complainant that the Court decision was binding and was in full and final   settlement of all claims associated with the cessation of the allowance for   managers. This case is unfounded.

I note that the Worker referred a claim to the Rights   Commissioner Service along with a colleague in April 2013 seeking to retain   an allowance when they were promoted to Team Leader. The Rights Commissioner   ruled against both claimants. (r-128166/8 – IR 12/JC).

I note that this was appealed to the Labour Court and because   of an administrative error the other worker was the sole person listed for   that hearing. The Labour Court decided (AD14105), that his case was   distinguished from all others pending the standardisation and regularisation   process. The Claimant received the allowance with retrospection and   subsequently retired from the service.

I note that the Worker then took a case to the Labour   Court and in decision AD 1446 “The   Court understands that whatever the outcome of those talks the Company   undertakes to comprehend this claim within the terms of the settlement that   finally emerge”. It also stated, “In   that context, and in line with the Court’s Decision in Appeal Decision AD14105   the Court decides that this claim should be comprehended in the terms of   settlement that emerge from that process.

I find that the Court by its reference to “and in line with the Court’s Decision in   Appeal Decision AD14105, means that the Worker should be treated the same   as the Claimant in that case, who had by then had received the allowance with   retrospection.

Therefore, I find that the Worker should have been treated   the same as his colleague.

Therefore, he should have received the allowance and be   comprehended by the subsequent collective agreement.

I note that these discussions ended with a Labour Court decision   LCR21422. It stated, “The allowance   being paid to eleven managers should be bought out on a compulsory basis.   In the exceptional circumstances of   this case the buyout should be at the rate of 2.5 times the annual value of   the allowance. This buyout of the allowance in this manner is limited to   those Managers who are currently in receipt of the allowance and is in full   and final settlement of all claims associated with cessation of the allowance   for managers.

I find that the Worker should have been comprehended by   that decision.

I recommend that the Worker should be comprehended by that   Labour Court decision LCR1422 and receive the appropriate allowance and   buyout.

This is to be done within six weeks of the date below.

Allowance buyout