INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
DUBLIN CITY COUNCIL
- AND -
(REPRESENTED BY UNITE)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal of Rights Commissioner's Decision r-136523-ir-13/RG.
2. The Worker is employed by the Road Maintenance Division, Engineering Department, Dublin City Council since 1991. Since 2006 he has held the position of Chargehand, Stonecutter/Flagger. The case concerns a loss of earnings claim due to the cancellation of overtime during 2009 by the Council.
The issue involves a claim by a Worker. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 1st May, 2014, the Rights Commissioner issued her Recommendation as follows:-
"I recommend that the Employer should pay the Claimant compensation of €3,000.00 (three thousand euro) in full and final settlement of this dispute between the parties."
On the 14th May, 2014 the Council appealed the Rights Commissioners 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 21st August 2014.
3. 1. The Council accepts that the Worker earned overtime up to 2009, however, this overtime was not regular, rostered nor was it compulsory.
2. The overtime was reinstated in 2010 and the Worker could have availed of the overtime but chose not to due to personal reasons.
3. The Council does not consider the temporary reduction in overtime to be compensatable.
4. 1 . The purpose of the compensation formula is to compensate workers for loss of expected earnings, clearly the Worker in this case suffered a substantial loss due to the Council's termination of overtime during 2009.
2. The restructured overtime system in 2010 does not reflect the system in place up to 2009. Two General Operatives working in the same section have been awarded compensation for their loss of overtime.
There is no dispute between the parties concerning the voluntary nature of the overtime in issue in this case.
An established distinguishing feature between regular and rostered overtime and ad hoc overtime is that the former is mandatory or contractual whereas the latter is voluntary. Where overtime is mandatory or contractual it becomes, in effect, part of a workers normal working hours and should be compensated for if discontinued. Where overtime is not mandatory it is voluntary to both parties, in the sense that the employee is not obliged to work the overtime and the employer is not obliged to provide it. The Court has consistently held that in such cases compensation is not payable.
In this case the overtime in issue was not regular and rostered as that term is generally understood. It follows that the Council should not be liable to pay compensation for any loss suffered by its discontinuance.
In these circumstances the Rights Commissioner’s Recommendation cannot be upheld. Accordingly, the Council's appeal is allowed
Signed on behalf of the Labour Court
21st August, 2014______________________
Enquiries concerning this Decision should be addressed to John Foley, Court Secretary.