LCR22528

FULL RECOMMENDATION

SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969

PARTIES :

KILDARE COUNTY COUNCIL
(REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY)

- AND -

A WORKER
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

SUBJECT:

1. Appeal Of Adjudication Officer Decision No(s). ADJ-00032394 CA-00042966-001.

BACKGROUND:

2. The Employer appealed the Adjudication Officer’s Recommendation to the Labour Court on 13 September 2021 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

On 6th August 2021 the Adjudication Officer issued the following Recommendation:-

“At the hearing, the HR Manager said that, in the year before he moved to his new rolw, the employee earned €7,087.57 in overtime. In settlement of this dispute, I recommend that his employer pays him €11,000 representing approximately 1.5 times that amount. I note the undertaking if the SIPTU representatives that this settlement does not establish a precedent for similar cases in the future.”

A Labour Court hearing took place on 15 December 2021.

DECISION :

This is an appeal by the Employer of Recommendation ADJ-00032394 of an Adjudication Officer in respect of the Worker’s grievance pertaining to a loss of earnings arising from a transfer. The Adjudication Officer recommended that the Worker be paid compensation equal to one and a half times the annual value of the overtime worked.

Summary of Worker’s submission

The Worker has been employed by this Employer since 1999. In the summer of 2017, the Worker approached his shop steward about difficulties, he was having with a work colleague and the manner in which that work colleague was treating him. The issue was raised with HR who provided advise in respect of processing a complaint through the dignity at work policy. Unfortunately, the Worker was not in a position to process a complaint.

The Worker was absent on sick leave for a period of time and when he was certified fit to resume work arrangements were put in place for him to be transferred to another post away from Housing Maintenance. In this post he retained his terms and conditions of employment including the regular rostered overtime that he had in his previous post. The Worker remained in that post for twelve months, but he felt that the post did not suit him, and he looked to move.

The Worker moved to a new post in January 2019, but his regular rostered overtime was no longer available to him. This was explained to him before he accepted the post. After a period of time the Worker raised the issue of compensation for his loss of earnings. While there were a number of meetings with the Employer to discuss this the Employer maintained that he was not entitled to compensation. No resolution to the issue could be found so the issue was referred to the WRC.

Summary of Employer’s submission

The Employer disputes that there is any entitlement to compensation for loss of earnings. The Worker met with the Employer’s HR but did not pursue a claim either formally or informally. When he returned from sick leave he was facilitated with a transfer where he maintained his regular and rostered overtime.

The Worker sought a transfer out of that position he was advised that if he transferred, the position available was a Monday to Friday post with no requirement to work Saturdays and therefore, he would lose his regular and rostered overtime. The Worker in full knowledge of the impact of the transfer indicated that he wanted to proceed with the transfer and the Employer facilitated his transfer. In the circumstances where this was a voluntary transfer no loss of earnings arises.

Decision

The Court notes that when the Worker was initially moved after his return from sick leave that he retained his regular and rostered overtime. He then requested a transfer, the financial consequences of moving from the post he was in were made clear to him, but he still opted to transfer. In those circumstances no loss of earnings claim arises.

The appeal is upheld. The decision of the Adjudication Officer is overturned.

The Court so decides.

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.