FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : GLANBIA PLC TRADING AS GLANBIA CONSUMER FOODS IRELAND - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Recommendation r-125749-ir-12/MMG.
BACKGROUND:
2. The Worker is employed as a Van Driver/Salesman since 2007 and is currently based in Dungarvan, Co. Waterford. A collective aqgreement in force since 2000 seems, according to the Union, to supersede the terms of his contract which excludes the payment of overtime unless requested directly by Management. As a result of the long term illness of the Manager who had the responsibility for the payment of wages to the Worker, the task was transferred to another Manager who already handled the payment of wages for the General Operatives. For over four years the wages of both the General Operatives and the Worker were calculated in the same manner which included the payment of overtime after 40 hours were worked each week until Management stopped the practice in the case of the Worker. Management claim that an error was made in the Wages Section which meant that the Worker was overpaid by €38,621.94 during this period. The Union is seeking the continuance of the overtime payments or alternatively a buy-out under normal terms of one-and-a-half times' the annual loss of earnings.
The issue involves a claim by the Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 5th February, 2013, the Rights Commissioner issued his Recommendation as follows:-
" It is recommended that the claimant be awarded a once off payment of €5,000 in compensation for the withdrawal of overtime payment earnings he had become accustomed to and that going forward he is remunerated in accordance with the policy and procedures governing same."
On the 21st February, 2013 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 the 18th September, 2013.
UNION'S ARGUMENTS:
3. 1. The comprehensive collective agreement dated 1st September 2000 states that employees are required to work overtime to supply the market and be paid overtime for actual hours worked. This Agreement has never been re-negotiated and is the primary document governing terms and conditions of employment and supersedes the Worker's contract of employment dated 14th June, 2007.
2. It has been a long standing agreement between SIPTU and Glanbia that compensation for loss of income is calculated at one-and-a-half times the annual loss which in this case amounts to €10,730.74.
COMPANY'S ARGUMENTS:
4. 1. The Company believes that the award of €5,000 to the Worker as compensation for the withdrawal of overtime which was not part of his contractual terms and conditions is not only excessive but unwarranted.
2. The Claimant will continue to be entitled to overtime payments for working on Bank Holidays, Saturdays, Sundays and on request by Management.
DECISION:
This is an appeal by the Company of a Rights Commissioner’s Recommendation which recommended that the Claimant should be awarded a once-off payment of €5,000 in compensation for the withdrawal of his overtime earnings. The Rights Commissioner also recommended that the subject-matter of this case should“be resolved as a stand-alone issue without recourse to any overall agreements within the company and employees arrangements”.
The Company submitted to the Court that payment of overtime to the Claimant was made in error. Management stated that all drivers are required to carry out their delivery duties in the time it takes to service their routes. Furthermore, the Company referred to the Claimant’s contract of employment which stated that no additional remuneration would be paid for work performed outside of normal hours.
The Union stated that the Claimant was required to work extra hours on a daily basis in order to service his routes and it referred to the Company/Union agreement which stated that“overtime will only be paid for actual hours worked or part thereof”.
Having considered the submissions of both parties the Court is of the view that there is merit in the Claimant’s claim, it concurs with the findings of the Rights Commissioner and upholds his Recommendation.
Accordingly, the Company’s appeal does not succeed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
25th October, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.