ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00005106
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 1969
26th August 2017.
Date of Adjudication Hearing: 17th May 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly.
Location of Hearing: WRC, Sligo.
In accordance with Section 41 of the Workplace Relations Act 2015, Section 13 of the Industrial Relations Act 1969 and following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
SIPTU were in dispute with the Respondent in relation to the question of payment of travel and subsistence payments for a period of working and training away from base.
Summary of Trade Union Case:
SIPTU said the Complainant commenced employment as an Emergency Medical Dispatcher (EMD) with the Respondent in May 2014; she was based in a stated Area. SIPTU said that for the first 21 weeks of her employment the Complainant undertook a combination of training and dispatch duties in another named area far from her base, for which no travel or subsistence payment was paid to her. SIPTU said that the Complainant’s employment with the Respondent terminated in May 2015.
SIPTU said that initially all of the Complainant’s colleagues, similarly affected for varying periods of training, also had their payments withheld. However, subsequently they received their payments on foot of an agreement with SIPTU. SIPTU further said that all other groups who commenced training in the same area from November 2014 onwards also received payments due to them and that accordingly the Complainant remains the only SIPTU member who has not received her entitlements in that respect.
The Complainant and SIPTU sought to deal with the issue locally in the first instance. However, as negotiations between the parties were ongoing a request for a meeting to discuss the Complainant’s case was declined at that time.
SIPTU said that in Summer 2016 agreement was reached in relation to all others affected and they all received payment. SIPTU said that in March 2017 an offer of €3,750 was made to the Complainant, but that however, this offer was based on only 10 weeks’ working in the away from base area, with only 3, rather than 4, overnights and with no travel element included. In correspondence to the Respondent SIPTU informed that any offer to the Complainant should reflect both her 21 weeks training period and also an amount in respect of travel undertaken.
SIPTU said that all those who were required to travel to and train/work in the same area the Complainant trained/worked in have received payment and only the Complainant remains unpaid. SIPTU said that this is unfair to the Complainant and should be rectified.
SIPTU said that having made an offer of €3,750.00c, it is reasonable to conclude that the Respondent accepts that the Complainant has an entitlement to payment. SIPTU said that however, on the basis of 4 overnights per week x by 21 weeks, plus €50 per week for travel the amount payable is €14,359.00c.
SIPTU said that in light of the foregoing and in all the circumstances they sought a finding and recommendation that the claim was well founded and that it be upheld.
Summary of Respondent’s Case:
The Respondent said that the claim under the Industrial Relations Act relates to the Complainant seeking a retrospective payment post the termination of her employment that was subject to an agreement between existing employees as a retention issue going forward.
The Respondent submitted that the claim lodged is unfounded and should be rejected.
The Respondent submitted a preliminary issue. The Respondent said that it should be noted that as of 14th May 2015, the Complainant is no longer an employee of theirs and they said that by this event they believe that no grounds of action pursuant to the IR Act exists as she can no longer be referred to a s ‘A Worker’ as defined by Section 4 of the 1946 Act as no contract of service currently exists and that accordingly no ‘trade dispute’ as set out in Section 3 of the Act applies as this relates to “any dispute or difference between employers and workers or between workers and workers connected with the employment or non employment, or the terms of the employment or with the conditions of employment, of any person.” The Respondent said that accordingly they believe this claim/ complaint is disbarred from consideration.
The Respondent said the Complainant was employed by them from 19th May 2014 to 14th May 2015 as a Dispatcher. They said that as part of the requirement of the post employees are required to complete 14 weeks training to receive certification to operate as a Dispatcher and in the main such training occurs in the Main Control Centre in a named location. The Respondent said that while undertaking the training required to be able to practice, the employee’s base for the 12 weeks is a named area before being operational either their or in their own base as their appointed location while on probation and going forward.
The Respondent said that while the Complainant’s training was expected to last 14 weeks in the Main Control Centre it actually lasted 22 weeks, the additional 8 weeks being due to her not meeting the required standard and requiring additional training due to her work performance and as such accommodation was made to facilitate such training and probation.
The Respondent said that due to recruitment and retention challenges for this job, it was agreed in late 2014 to make subsistence payments for a current period of time in an attempt to entice persons to take up positions in the area, this clearly being an agreement on retention after the Complainant had left for a lesser grade.
The Respondent said that notwithstanding their preliminary submissions their clear position is that the Agreement was made to make payments as a retention issue and does not relate to the Complainant as there was no future affect due to her no longer being an employee.
The Respondent said that their National Financial Regulations in Section 5 states that subsistence payments are based on absence away from official headquarters or normal place of work. The Respondent said that if should be noted that the Complainant’s contract of employment refers to staff being assigned to either of the two named locations, including movement, it highlights the actual base or normal place of work was where assigned, that initially was one location before moving to the second one and as such subsistence payments would not apply. They also note that the relevant job description from October 2013, made reference to both locations for assignment.
The Respondent said that the Agreement reached to assist retention in late 2014, allowed a differing interpretation of place of work from that at NFR. They said that however it of particular significance is that this is a current solution for dispatchers due to particular difficulties that may be reversed in the future based on recruitment requirements.
The Respondent said that as the Complainant is no longer an employee they do not see how an Agreement on retention for existing employees can be retrospectively applied due to the forward facing nature of such an Agreement. An agreement at a point in time with a determined goal was put in place after the Complainant had left the employment and it has no basis for retrospection.
Based on the foregoing the Respondent submitted and sought that their position be upheld and the claim be rejected.
At the request of the Adjudication Officer the Respondent sent on further information including calculations of what the Complainant would be entitled to if the same payments as her colleagues and the payments actually made to her colleagues.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the dispute.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
Preliminary Issue: The Respondent submits that the as the Complainant was no longer an employee of theirs when she submitted her complaint she is not ‘A Worker’ as defined by the Industrial Relations Act 1946 and that accordingly she is not covered or comprehended by the Industrial Relations Acts and is not entitled to have her claim. The description of a ‘A Worker’ for the purpose of the Industrial Relations Acts is contained in Section 4 of the 1946 Act and it states: “In this Act (except Part VI) the word “worker” means any person of the age of fourteen years or upwards who has entered into or works under a contract with an employer whether the contract be for manual labour, clerical work, or otherwise, be expressed or implied, oral or in writing, and whether it be a contract of service or an apprenticeship or a contract personally to execute any work of labour, other than— (it then goes on to list exceptions, which do not apply in the instant case).
It is clear that the Complainant falls four square within the above description, she is over fourteen years of age and she had “entered into” and worked “under a contract with the employer.”
The definition of ‘trade dispute’ in Section 3 of the 1946 Act quoted by the Respondent defines a “trade dispute” as “any dispute or difference between employers and workers……..”
The Respondent is still an ‘employer’ and the Complainant is still a ‘worker’ (albeit no longer employed by the Respondent). It is extremely well established over a very lengthy period of time that workers are entitled to take cases against their former employer and that right has been upheld innumerable times by the Labour Court, subject only to it being in relation to their employment, or non-employment, or the terms of the employment, or with the conditions of employment, of any person and also to the fact that they must not have permanently retired from working.
It is clear and obvious that the instant matter falls fully within the above and that the Complainant is fully entitled to have her claim under the Industrial Relations Acts heard and a recommendation issued. In addition I note that in accordance with the provisions of the 1969 Act it was open to the Respondent to object to a hearing of the claim under that Act investigated by an Adjudication Officer and prevent the claim from being heard or investigated by an Adjudication Officer.
For all of the foregoing reasons I find and declare that the submissions of the Respondent in this respect are without merit and they are rejected by me.
Substantive Issue: I have carefully considered the evidence and the submissions made and I have concluded as follows.
I note that all of the employees who worked alongside the Complainant at the same time as the Complainant were all paid travel and subsistence payments as sought by her and for the period for which the Complainant is seeking the payments. I can see no reason why the Complainant should be treated any differently than her colleagues, to do so would be unfair, unjust and unequitable. Accordingly I see considerable merit in the claim and it is upheld in full by me.
I am accepting the figures and information provided to me by the Respondent in relation to the calculation of the travel and subsistence payments and accordingly I find and accept that the amount due to the Complainant in line with those calculations is €6,005.56c and I require the Respondent to pay her that amount within 6 weeks of the date of this recommendation.
In addition I consider the way this matter was handled by the Respondent was unfair and unjust to the Complainant and in particular the delay of the Respondent in dealing with this was unfair to the Complainant and caused her some hardship. Accordingly I now also recommend that the Respondent should pay the Complainant compensation in the sum of €1,000.00c within 6 weeks of the date of this recommendation for the manner of and delays in dealing with this matter. I wish to confirm that this sum of €1,000.00c is not wages or arrears of wages but rather is compensation for the way the matter was handled by the Respondent.
Dated: 21st June 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly.
Key Words: Industrial Dispute; Travel and Subsistence Payments.