FULL RECOMMENDATION
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : LIEBHERR CONTAINER CRANES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Payment Of The Department Average Of 127% With Full Retrospective - Reinstatement To Previous Post Ill Health - Upgrade To Grade 5 In Line With Comparator
BACKGROUND:
2. This dispute could not be resolved at local level and was the subject of Conciliation Conferences under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 22 February 2019 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 26 June 2019.
UNION’S ARGUMENTS:
3. 1. The Union states the Worker is seeking to have his post prior to his four year absence on grounds of ill health upgraded to Grade 5 in line with his comparator.
2. The Union states the Worker carried out the same job description as his comparator since 2001. This comparator was paid at Grade 3 being upgraded to Grade 5 with a 27% bonus.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer believes the Worker has not been treated less favourably than another employee.
2. The Employer states no internal grievance was raised by the Worker regarding an alleged comparator for 2 years following his return to work.
RECOMMENDATION:
Background to the Dispute
Although this dispute was referred to the Court by the Workplace Relations Commission pursuant to section 26(1) of the Industrial Relations Act 1990, following an unsuccessful conciliation conference, it relates to one individual Worker’s rate of pay.
The Worker commenced his employment as a General Operative with Liebherr Container Cranes (‘the Company’) on 6 December 1999. Because of his prior experience before joining the Company, the Worker was placed on Group 2.2 of the Company’s agreed Wage Schedule. In March 2001 he was progressed to Group 3 (Unskilled/Machine Operator). On 1 October 2001, he was placed on a contract of indefinite duration and received a service increase to Group 3.3.
In March 2010, the Worker referred an individual dispute pursuant to section 13 of the Industrial Relations Act 1969 to a Rights Commissioner. The Worker was seeking a regrading to Group 4. The Rights Commissioner did not recommend in the Worker’s favour. The Worker did not appeal that Recommendation to the Court.
The Worker was subsequently absent on certified sick leave from February 2011 to September 2015. He again raised the issue of his grading with the Company’s then Human Resources manager prior to his returning to work. However, he agreed to return on the terms and conditions that applied prior to the commencement of his sick leave.
In 2017, the Worker attempted to refer the issue of his pay grade to an Adjudication Officer pursuant to section 13 of the Industrial Relations Act 1969. However, the Adjudication Officer declined jurisdiction as the issue had previously been before a Rights Commissioner.
In October 2017, the Worker raised an internal grievance using the Company’s Grievance Procedure. He alleged that a colleague had been given his duties and was being remunerated at a higher rate than the Worker. That matter was investigated by the Company’s then HR Manager who held that the grievance was not well-founded: the colleague had replaced the Worker while the latter was on sick leave and was remunerated at Grade 3.3 during that period; however, the colleague had successfully applied for a promotional position in October 2015.
Submissions
The Worker is seeking regrading to Group 5, payment of department average bonus of 27% per annum with full retrospection to 8 April 2010. He has valued his claim at €130,662.00.
The Company submits that the Worker’s job was previously the subject of an industrial relations process and was found to have been correctly evaluated as a Group 3 job.
The Company further submits that it is inappropriate for the Worker to attempt to revisit this issue again and via a collective industrial relations mechanism. There is an agreed grading structure in place in the Company’s plant and the rates at which those grades are remunerated are subject to collective agreement and cannot be altered at the request of one individual.
It also submits that the Worker did not raise an internal grievance in relation to his grading vis-�-vis that of the colleague who had replaced him while he was on extended sick leave until two years after he returned from sick leave.
Recommendation
The Court finds that nothing apart from mere assertions have been advanced in support of the Worker’s claims. Accordingly, the Court has concluded that the claim is not well-founded and does not recommend in favour of the Worker.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
TH______________________
22nd July 2019Deputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Therese Hickey, Court Secretary.