INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
AMALGAMATED TRANSPORT AND GENERAL WORKERS' UNION
Chairman: Mr Flood
Employer Member: Mr McHenry
Worker Member: Mr Rorke
1. Appeal against Rights Commissioner's Recommendation No RC 1053/97.
2. The appeal by the Union is on behalf of a worker who, in September 1992, moved from a position in the Company's Polishing department, where he received a £12 per week differential, to a position in the Plastics department. Subsequent to his transfer, the differential, which would normally have been retained if the transfer had been at the request of the Company, was withdrawn. The Union claims that the worker should have retained the differential on the grounds that the Company had originally requested the transfer and that it was taking advantage of his co-operativeness.
The claim was rejected by the Company which stated that, at the outset, the worker had been requested to transfer for a short period in order to cover for a colleague on sick-leave. Subsequently, the Company indicated, the worker had applied for a job in Plastics and, accordingly, was bound to lose the allowance. The dispute was the subject of investigation by a Rights Commissioner who found that it was not possible to re-construct what might have happened over 5 years ago. He found further that the kernel of the dispute was whether or not that the worker had requested the transfer and he considered that there was an obligation on the worker, if he felt he had a valid grievance, to raise it at an earlier opportunity. He recommended that the worker accept that he no longer has the basis for a dispute with the Company.
The Union appealed the Recommendation to the Labour Court, on the 12th of December, 1997, in accordance with Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal, in Mullingar, on the 9th of June, 1998.
3. 1. The worker was requested by management to move to the Plastics Department for a period and he retained the £12 differential. Subsequently, he was approached by management and, having been advised that he was performing satisfactorily, was asked to stay on in that area. The differential was, however, withdrawn by the Company.
2. The matter was raised constantly by the Union over the past number of years and was the subject of local discussions which have been delayed due to changes in Company management. The worker denies that he sought the transfer and should be compensated for the loss of the differential, as the learning of new skills and flexibility and mobility should not be reasons for the loss of earning capacity.
4. 1. In 1992, the worker sought from the Company a transfer from the Polishing Department to the Plastics Department and the Company acceded to his request. The worker was aware that he would lose his differential as a consequence of his request being granted. The production managers at the time have confirmed that the worker requested the transfer and that he was aware he would lose his differential.
2. The Rights Commissioner, in his findings, felt that there was an obligation on the part of the worker, if he felt he had a valid grievance, to raise it at an earlier opportunity. The worker did not raise the issue as a grievance at the time he requested the transfer. If he had done so, and was dissatisfied with the Company's response, he could have had the Union process the matter through procedures at that stage. The Company, subsequently, addressed the matter and the worker's grievance was fully investigated.
The Court, based on the information before it, upholds the Rights Commissioner's Recommendation and rejects the appeal.
The Court so decides.
Signed on behalf of the Labour Court
8th July, 1998______________________
Enquiries concerning this Decision should be addressed to Michael Keegan, Court Secretary.