ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00038837
Parties:
| Worker | Employer |
Anonymised Parties | A Paramedic | A Service Provider |
Representatives | SIPTU Workers Rights Centre | Employee Relations Manager |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00049848 | 25/04/2022 |
Date of Adjudication Hearing: 01/11/2022
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
Background:
The Worker stated that he should have received the applicable subsistence payment in respect of an absence from his base of more than 10 hours on 18/19 February 2021. |
Summary of Worker’s Case:
The Worker stated that he left his base at 11 23pm on 18 February 2021 and did not return there until 12 00pm the following day. Specifically, he took two trips, one lasting over three hours and a second that took him nine hours. While it was accepted that he returned within 8 kilometres of his employer’s base between the two trips, he did not return to the base itself and spent a total of more than 10 hours away from there. Accordingly, it was asserted that he is entitled to the applicable 10 hour subsistence payment. |
Summary of Employer’s Case:
The Employer stated that subsistence is paid in accordance with the National Financial Regulations and Circular 13/2019: Domestic Subsistence Allowances, Department of Public Expenditure and Reform. Specifically, the Circular sets out two categories of a subsistence payment: 5 hours (€15.41) and 10 hours (€36.97) which are payable depending on the time spent away from the employee’s normal place of work, further than 8 kilometres. In the instant dispute, the Employer stated that the system used to monitor and track ambulance calls showed that the Worker was not more than 8 kilometres from his base for more than 10 hours during his shift on 18/19 February 2021. Specifically, the breakdown of activity on the system showed that the Worker left his base at 11.23pm, returned to within 8 kilometres of there at 2.42 am, that he left on another call at 03.08 am and returned again to within 8 kilometres of his base at 12.00pm. Given that he was therefore not more than 8 kilometres away from his base for more than 10 hours during the shift, he is only entitled to be paid the 5 hours subsistence amount, rather than the 10 hour payment. |
Findings and Conclusions:
In making a recommendation in relation to this dispute, I cannot ignore the rules set out in Circular 13/2019 as outlined in the summary of the employer’s case above. While these may appear to be unfair, I am satisfied that they are clear and stipulate that the 10 hour subsistence payment can only be made in circumstances where a worker is further than 8 kilometres away from his base for more than 10 hours. In applying the rules to this dispute, I find that, despite having worked from 11.23pm on 18 February until 12pm on 19 February, the Worker was within 8 kilometres of his base between 2.42am and 3.08 am on 19 February and is therefore not entitled to receive the 10 hour subsistence payment. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I cannot make a recommendation that is favourable to the Worker for the reasons set out above. |
Dated: 01st March 2023
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
|