FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : OFFALY LOCAL DEVELOPMENT COMPANY LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Recommendation R-092087-IR-10/EH.
BACKGROUND:
2. The case before the Court concerns the Employer’s appeal of a Rights Commissioner’s Recommendation R-092087-IR-10/EH. The dispute relates specifically to the Worker’s claim for the retrospective application of a pay increase, arguing that he was incorrectly placed on a lower point of the salary scale following the Employer’s introduction of revised pay scales. The Worker is currently employed as a Jobs Initiative (JI) Team Leader in Offaly Local Development Company Limited. His terms and conditions of employment are set out by FÁS and decisions relating to his salary and Benchmarking payments remain at the discretion of FÁS. The Worker contends that in accordance with Labour Court Recommendation No.18921, which recommended that JI Team Leaders receive Benchmarking payments in line with FÁS Community Employment Supervisors, he was incorrectly placed on the revised salary scale and as a result he has incurred a significant financial loss. The Worker is currently seeking the application of the Benchmarking payments as set out in LCR18921.
The Employer rejects the Worker’s claim maintaining that the Worker was correctly placed on the salary scale and accordingly the Worker is not entitled to any retrospective payment. The Employer asserts that it operates on instructions received from FÁS and is not in a position to concede to the Worker’s claim.
The matter was referred to a Rights Commissioner for investigation and recommendation. On the 8thMarch, 2011 the Rights Commissioner issued his Recommendation as follows:
“I recommend that *the Claimant receives the retrospective payments.
I recommend that the Employer should make an application for the necessary funds with immediate effect, in order to make this retrospective payment”.
On the 18thApril, 2011 the Employer 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 1stMay, 2012.
UNION'S ARGUMENTS:
3.1.The Worker has been treated in an equitable manner as a result of his incorrect placement on the revised salary scale.
2.The Worker contends that the Employer has yet to provide a viable explanation as to how he was positioned on the salary scale.
3.The Worker has suffered a substantial financial loss and is seeking the retrospective payment of the salary increases as recommended in LCR18921.
EMPLOYER'S ARGUMENTS:
4.1.The Employer is of the view that the Worker was correctly positioned on the revised salary scale and is not entitled to the retrospective application of the pay increases.
2.The Employer maintains that it operates on instructions received from FÁS and is not in a position to concede the Worker’s claim.
3.The Employer is not in a financial position to concede any cost-increasing claim.
DECISION:
This is an appeal by the Company of a Rights Commissioner’s Recommendation which found in favour of the Claimant’s claim. The Union on behalf of the Claimant claimed that he was incorrectly placed on the wrong point of the scale following a Labour Court Recommendation No: 18921 in 2007 when a salary scale was devised for Job Initiative Team Leaders in order to apply Benchmarking increases.
The Union submitted that the Claimant should have been assimilated onto point four of the new scale as had been applied to all other Job Initiative Team Leaders. The Claimant was assimilated onto point two of the scale and subsequently moved to point four. The Union sought retrospection (back to 20thJune 2007, the applicable date of the Benchmarking payments) due to the Company’s incorrect assimilation.
The Company appealed the Rights Commissioner’s Recommendation and maintained that it had correctly assimilated the Claimant following the instructions of both the Department of Enterprise Trade & Employment (as it was then called) and FÁS which stated that “staff should move onto the nearest point on the new scale above the current rate”. The Claimant was on €623.69. Point two of the new scale was €650.91, point four was €735.28.
Having considered the submissions of both parties the Court has not been given any information to suggest that the Claimant was assimilated any differently than other Job Initiative Team Leaders similarly affected. The Court is satisfied that the Company’s method of assimilation was in line with assimilation methods normally used. Secondly, it has also come to light how Job Initiative Team Leaders were historically paid prior to the new scale being introduced, following Labour Court Recommendation No: 18921. On that basis, the Court is satisfied that the Company correctly assimilated the Claimant onto the new scale in 2007 in accordance with the instructions of both the Department and FÁS and sees no justification for assimilation onto the fourth point of the scale.
Therefore, the Court overturns the Rights Commissioner’s Recommendation and upholds the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th May 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.