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 IR10758/02/MR
2. The issue involves the starting pay of the Claimant, upon his appointment as Senior Executive Engineer on 28th May 2001 to South Tipperary County Council. At the time of the promotion his position was Acting Senior Executive Engineer. Due to an administrative error his starting salary included the acting allowance. Circular letter E.L.5/67 does not allow for the acting allowance to be included when calculating starting pay on promotion. The error was discovered within two months and €132.50 overpayment was made. The County Council set about recouping the overpayment. The matter could not be resolved locally and was referred to a Rights Commissioner for investigation and recommendation. On the 27th January, 2003 the Rights Commissioner issued his recommendation as follows:
"In thecircumstances,I therefore recommend that South Tipperary County Council should agree, as a gesture of goodwill and on a wholly exceptional basis, to make a once-off lump sum payment of €1,000 to the Worker 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 County Council admits that an administrative error occurred when the Claimant was being offered the post of Senior Executive Engineer and was advised incorrectly about his starting pay. Circular letterE.L.5/67 does not allow for the acting allowance to be included when calculating starting pay on promotion.
2. The error was discovered within a number of weeks and the Council took immediate steps to advise the Claimant and recover the overpayment which amounted to £132.00.
3. The Rights Commissioner pointed out that the Council was within its rights to recover the overpayment. The Council operated within the parameters of the Payment of Wages Act, 1991 in this regard.
4. It is the County Council's view that the sum of €1,000 awarded by the Rights Commissioner was unwarranted and inappropriate in the circumstances of the case, particularly as the Rights Commissioner accepted the County Council acted correctly in applying the rules governing pay on promotion.
4.1 The Claimant applied for and was successful in a competition for a long term acting position in 2000. He was given a rate of pay appropriate to that position In 2001 he applied for another position and was successful. He was offered the position in writing with a rate of pay specified for the post, which he accepted.
2. Two months after his appointment, the County Council informed the Claimant that an error had been made in calculating his starting salary for the post and that they were reducing his salary and deducting the overpayment.
3. The Union argue that the Acting Allowance was given for a specific job over five years and contend that, that effectively removes the "temporary" aspect from the situation and should be included in his starting salary.
4. The salary rate which was initially offered to the Claimant and which he accepted related to the maximum point of the Senior Executive Engineer scale. Due to this error the Claimant has now to wait an addition year to reach the maximum point on the LSI scale, which equates to almost €2,000.
Management's position is that the acting allowance cannot be included in the calculation of salary on promotion. The Union argues that the allowance should be included, as it was originally done in this case.
The Court, having considered the information before it, is satisfied that relevant circular E.L.5/67. does not allow for the acting up to be included when calculating starting pay on promotion.
However, Management accepts that the claimant was given a salary figure that included the acting allowance due, it claims, to an error.
The Court does not believe that such an error, particularly as it was only for a few months, justifies a payment of €1,000.
The Court, therefore, upholds the appeal and rejects the Rights Commissioner recommendation.
The Court suggests that the authority does not pursue the claimant for the outstanding amounts.
Signed on behalf of the Labour Court
24th July, 2003______________________
Enquiries concerning this Decision should be addressed to Jackie Byrne, Court Secretary.