INDUSTRIAL RELATIONS ACTS, 1946 TO 2001
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SOUTH TIPPERARY COUNTY COUNCIL
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Mr Flood
Employer Member: Mr Keogh
Worker Member: Mr. Somers
1. Appeal against Rights Commissioner's Recommendation IR5075/01/MR
2. The issue involves the non payment of removal expenses by the South Tipperary County Council to the Claimant on his appointment to South Tipperary County Council in May 2000. The Union maintains that the Claimant was entitled to removal expenses under circular letter E.L. 13/78. Paragraph 1 (i) which states:
- Where his appointment to the new office either arises from the same competition as for the existing office or the appointment to the new office occurred within a period of 12 months after the appointment to the existing office
- he does not receive payment of removal expenses on theinitial promotion.
- The matter was referred to a Rights Commissioner for investigation and recommendation. On the 27th January, 2003 the Rights Commissioner issued his recommendation as follows:
"In the circumstances, I therefore recommend that South Tipperary County Council should agree, on a wholly exceptional basis, to make a once-off lump sum payment of €9,500 to the Worker arising out of his change of residence and that the Worker and SIPTU should accept this payment in full and final, settlement of all matters in dispute between the parties"
(The worker was named in the Rights Commissioner's Recommendation).
On the 3rd March, 2003 the County Council appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 15th July, 2003, the earliest date suitable to the parties.
COUNTY COUNCIL'S ARGUMENTS
3.1 The removal expenses scheme circular letter E.L. 13/78 Paragraph 1 (i), is intended that it should only be paid in respect of promotions. As the Claimant was not being promoted he does not qualify for removal expenses under the terms of the scheme. The issue of the three weeks delay in taking up the post after the 12 months period is not relevant.
2. There are no exceptional circumstances in this case that would allow for a payment under the scheme.
3. The County Council is obliged to implement schemes such as the removal expenses scheme in accordance with the Department of Environment, Heritage and Local Government Circulars and is not in a position to alter the terms of such schemes.
- 4. The Rights Commissioner also accepted that the Claimant did not qualify for payment under the scheme.
4.1 The Union's interpretation of Paragraph 1(i) of circular letter 13/78 suggests that the Claimant is eligible for removal expenses under the scheme.
2. The Claimant did not receive removal expenses on his initial promotion in Dublin City Council. He did not receive any removal expenses on his transfer at the same grade to Meath County Council. Circular letter 13/78 covers transfer at the same grade within 12 months of the earlier transfer.
3. The offer and acceptance of the post by the Claimant at the same grade was within a 12 month period of the earlier transfer at the same grade. The Claimant informed the County Council that there would be a three week delay (after the 12 months period) in taking up the post. At that point queries were made by the County Council as to his eligibility for removal expenses.
4. There is an "exceptional circumstances" clause in the circular letter which states"It is not intended that these instructions should preclude treatment on their merits of very exceptional circumstances"andthat it not designed to be punitive.It is clear that the spirit of this circular letter is intended to be as inclusive as possible, in the circumstances surrounding transfers.
5. While the Rights Commissioner's recommendation did not address the full cost incurred by the Claimant is does appear to accept that he was eligible under the circular letter but that the delay of the three weeks in taking up his position was the issue.
The parties have different interpretations of removal expenses document E.L.13/78. Management's view is that the claimant was not eligible for the removal expenses as per the document, the Union arguing that he was eligible.
The Court is concerned that a significant amount of the correspondence between the claimant and the employers centred around the fact that he was 3 weeks beyond the 12 months limit he believed to be required for eligibility for removal expenses to be paid.
The Rights Commissioner also referred in detail to the 3 weeks situation.
Given Management's stated position that the claimant was ineligible for the removal expenses allowance, the Court finds it extraordinary that a number of letters make the point that the removal expenses could not be paid as his appointment to the Tipperary Council "could not take place within 12 months of your appointment to Meath County Council". This gave him the impression that this was a key factor in the refusal.
Given that Management's position from the beginning was that he did not qualify, the Court, based on the history of events, finds the Rights Commissioner's findings to have merit and therefore, upholds his recommendation and rejects the appeal.
Signed on behalf of the Labour Court
22nd July, 2003______________________
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.