FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : SOUTH DUBLIN CO CO (REPRESENTED BY LGMA) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Hall |
1. This is an appeal of Adjudication Officer Recommendation No ADJ-00015333.
BACKGROUND:
2. This is a cross appeal by both the Union on behalf of an employee and by management against an Adjudication Officer’s Recommendation concerning payment during a period of suspension. The issue was referred to the Workplace Relations Commission for investigation.
A recommendation issued on the 17th of December 2018 whereby it was recommended that the Employer pay redress to the Worker of €3,600. The recommendation was appealed to the Labour Court under Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 29th of March 2019.
UNION'S ARGUMENTS:
1. One week in four the Worker was required to carry out village cleaning duties for which he received four hours pay at double time plus one hour travel. On every second Saturday he was required to carry out general maintenance works. The Worker also had regular and rostered responsibilities to supervise maintenance works for approximately 70 matches per year for which he was paid four hours pay at double time.On one week in every four the Worker was on-call for emergency events. If not called, he received an allowance of €80.64 per week. If called, he received the €80.64 allowance plus four hours at double time for each call out. Despite being both regular and rostered during the period of suspension the Worker received none of his payments in respect of the above.
2. The Claimant had an obligation to carry out the duties on a regular and rostered basis.
MANAGEMENT'S ARGUMENTS:
1.The Council contend that the payment to the claimant during the period of suspension provided full pay and all contractual entitlements to him. However this does not include ad hoc, voluntary and non-contractual/non-mandatory overtime.
2.The Council asserts that it acted reasonably and fairly in relation to payment during the suspension and that it followed proper procedures in relation to the suspension itself and the payment provided to the claimant during this period included all remuneration that the claimant was normally entitled to.
DECISION:
This is a cross appeal by both the Union on behalf of an employee and by management against an Adjudication Officer’s Recommendation concerning payment during a period of suspension.
The Claimant was suspended from work on full pay during the period from 21stMarch until his dismissal on 9thNovember 2017. In its claim, the Union sought the inclusion of payment for those duties rostered as overtime, which it claimed were required to be worked on a regular and rostered basis.
Management stated that the Claimant was paid all contractual and normal pay during his period of suspension. It submitted that the additional monies being sought were in relation to ad-hoc overtime and not regular and rostered overtime, which was provided during the period of suspension.
It submitted that the claimed overtime was done on a voluntary basis, and was not contractual or mandatory, he was free to turn it down at any point. It referred to the works done at the Stadium and accepted that it may be regular and rostered but stated that it was not mandatory, obligatory or contractual.
The Claimant was employed as a Foreman of Works. He said that he was required to be on a roster on every second Saturday (every Saturday in the summer months) to carry out general maintenance works. He also had regular and rostered responsibilities to supervise maintenance works at a Stadium for approx. 70 matches per year. He was also on call for emergency events one week in four for which he received an allowance of €80.64 per week and overtime if called out.
The Claimant told the Court that he requested to be placed on the roster, however, if he failed to turn up on two occasions he was subject to sanction and would be removed from the roster for six months.
The Court in LCR 21706 examined the concept of “regular and rostered” overtime in the context of a claim for loss of earnings and held as follows:-
- 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.
Both parties in this case relied on the above Labour Court Recommendation in support of their respective positions.
Having considered the position of both sides, the Court is of the view that the Claimant’s pay during the period of his suspension was reflective of overtime which was contractual in nature but did not include that which was not so classified as it was voluntary in nature. The Court concurs with this position.
In line with the position as outlined in LCR 21706, the Court accepts that the overtime claimed by the Claimant was not contractual or mandatory. He opted to be included on a roster and could have refused to do so, without incurring any disciplinary sanction.
Therefore, the Court does not recommend in favour of the Union’s appeal. The Court upholds the Council’s appeal and overturns the Adjudication Officer’s Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CH______________________
15th April 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Carol Hennessy, Court Secretary.