FULL RECOMMENDATION
SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE - AND - A WORKER (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Payment of Allowance.
BACKGROUND:
2. The case before the Court concerns the Claimant's claim that she has been treated in an inequitable manner by her Employer as a result of its refusal to apply a Dual Capacity allowance that she alleges to have been entitled to. The Employer rejects the Claimant's claim arguing that the Claimant has been remunerated appropriately at all times and furthermore, the allowance in contention is no longer in existence and cannot be applied to the Claimant.
On the 21st September, 2017 the Union on behalf of the Claimant referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 7th November, 2017.
The Union agreed to be bound by the Court’s Recommendation.
UNION'S ARGUMENTS:
3. 1. The Dual Capacity allowance was paid to employees carrying out additional duties of a superior nature and should have been applied to the Claimant.
2. The Claimant did not pursue the issue of the allowance with her Employer during a period of economic difficulties however it was expected that the allowance would be retrospectively applied in due course.
3. The Union on behalf of the Claimant is seeking application of the allowance to the Claimant for recognition of the additional duties carried out.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer contends that the Claimant did not pursue the application of the allowance at the time when it is alleged she had been entitled to it.
2. The Employer further contends that the allowance was discontinued and cannot applied to the Claimant.
3. The Employer asserts that the Claimant has been remunerated correctly at all times.
RECOMMENDATION:
The issue in dispute between the parties is the non-payment of an allowance to the Worker who she was carrying out duties at a higher level. The claim was for payment of the allowance for the period October 2010 to December 2012 when the allowance ceased. The Employer did not dispute the fact that she was carrying out additional duties. Both parties agreed that this issue had evolved to a position where an agreement was drafted up which could resolve this and other issues. However, the Employer had to withdraw from that agreement prior to it being signed off.
The Union outlined the history behind the claim highlighting the various occasions when the Worker had additional work assigned to her without any reduction in her existing workload. How she had sought recognition for this increased workload initially through the regularisation process and then by way of payment of the dual allowance. They indicated that other colleagues in similar circumstances to the Worker had been recompensed and drew the Court’s attention to an Adjudication case where the dual allowance had been awarded retrospectively. This case had been referred to Adjudication and while initially the Employer had declined to attend they subsequently agreed to go. Engagement took place between the parties prior to the scheduled date for the hearing. This engagement led to agreement in principle and an agreement was drafted up. On that basis, the case was withdrawn from the Adjudication services. Management subsequently withdrew from the agreement and no explanation was proffered as to why and the Union felt it had no option but to refer the case to the Labour Court under section 20 (1) of theIndustrial relations Act 1969.
The Employer did not dispute that the Worker had additional work assigned to her over the years or the sequence of events that led to the Labour Court. However, they argued that it was their position all along that she had been paid the appropriate rate for the job and this was vindicated by the regularisation process. The Employer argued that the claim for payment of the Dual allowance was only made in April 2016 when the regularisation claim was unsuccessful. The Employer did not dispute that they engaged with the worker in relation to this issue and that it evolved into an agreement which encompassed other issues but which ultimately would have resulted in a pay increase for the worker. The Employer was unable to offer a cogent reason as to why they had to withdraw from an agreement that they freely entered into but, acknowledged that they were aware that the agreement was fundamental to the Union withdrawing the case from Adjudication.
Recommendation
The Court, having considered the detailed submissions of both parties and the oral submissions made at the hearing notes that the Employer when they entered into the agreement referenced above were prepared to acknowledge that there was an issue to be addressed in relation to the duties being performed by the Worker. The Court finds it highly unsatisfactory that at the end of that process knowing that an Adjudication hearing had been cancelled the Employer would unilaterally withdraw from the agreement without any acknowledged reason. The Court finds this behaviour to be unfair in the extreme to the Worker and recommends compensation of €6,500 euro in full and final settlement of this claim.
The court so recommends.
Signed on behalf of the Labour Court
Louise O'Donnell
23rd November 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.