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2003

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AD036

FULL RECOMMENDATION

CD/02/379
APPEAL DECISIONNO.AD036
(IR7741/02/TB)
INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969



PARTIES :
LONGFORD COUNTY COUNCIL

- AND -

SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION


DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Pierce
Worker Member: Ms Ni Mhurchu
SUBJECT:
1. Appeal against Rights Commissioners Recommendation Ir7741/02/TB.


BACKGROUND:

2. The appeal concerns three workers, employed by the Council, who performed street cleaning duties in Longford Town for many years. They worked four hours overtime on Saturdays and four hours overtime on Sundays. In 2000, the work was discontinued. The Union, on behalf of the three workers, submitted a claim for compensation for the loss. The Council made an offer but it was rejected by the Union. The dispute was referred to a Rights Commissioner for investigation. On the 18th June, 2002, the Rights Commissioner issued his recommendation as follows;

"In respect of the loss of overtime claim I recommend that Mr O'Neill be paid €6,000 in compensation, Mr Nolan be paid €3,000 and Mr Stokes €2,000.
I do not recommend compensation in respect of the travelling to work claim".



0n the 15th July, 2002, the Union appealed the recommendation to the Labour Court. The Court heard the appeal in Longford on the 30th January, 2003.


UNION'S ARGUMENTS:

3. 1. The claimants worked the weekend overtime for 28 years, 12 years and 6 years respectively. The overtime was regular and rostered and the payments they received were considered part of their normal pay package.

2. The claimants sustained a loss of fourteen hours overtime per week. The payments amounted to €150 per week gross.

3. The claimants have agreed a new call out arrangement which has slightly offset the loss but, as it is not regular or rostered, it cannot be taken as replacement earnings.

4. If the weekend cleaning arrangement had continued the new call out earnings would have been additional to the weekend payment.

5. In a previous case a worker was awarded €8,250 for a weekly loss of €85 per week earned over twenty years.

6. The Rights Commissioner's award to the claimants does not take into account the loss to their pension entitlements as the earnings lost were pensionable.

7. The Union seeks the award of a lump sum equal to twice the actual earnings lost.


COUNCIL'S ARGUMENTS:

4. 1. The Council undertook the street cleaning duties on behalf of Longford Urban Council which terminated the arrangement in February, 2000. Longford County Council had no part in this decision to discontinue the street cleaning arrangement.

2. The losses incurred by the claimants are not as significant as originally indicated.

3. The provisions of the Organisation of Working Time Act, 1997 have implications in relation to any claims for overtime in this case, with particular reference to the 48 hours per week maximum per employee provision.

4. The Council accepted the Rights Commissioner's recommendation subject to the proviso that it was accepted simultaneously by the claimants.


DECISION:

The Court notes that apart from the financial loss which the claimants will suffer as a result of the elimination of the overtime at issue, there will be a longer term loss in superannuation entitlements arising from the pensionable nature of the payments concerned. The Court feels that this aspect of the loss would not be adequately covered by the recommendation of the Rights Commissioner.


In the Court's view Mr Nolan and Mr O'Neill should be paid compensation in the amount of €15,000 in full and final settlement of their claims arising from the discontinuance of the overtime. In the case of Mr Stokes, it is noted that he is on long term sick leave and could not have suffered the same degree of loss as his colleagues. However, he will suffer loss of pension entitlement and will suffer a potential loss should he return to work in the future.

In the case of this claimant the Court recommends that in full and final settlement of his claim he be paid €5,000 at this time. If and when he recovers from his current illness and returns permanently to work, that he be paid the remaining €10,000, provided that he would have a minimum of two years to serve before retirement.

The appeal is allowed and the recommendation of the Rights Commissioner is varied accordingly.



Signed on behalf of the Labour Court



Kevin Duffy
07th February, 2003______________________
todDeputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.




 
 
 
 
 
 
 
 
 

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