Worker

Employer

Anonymised Parties

A Worker

A Third Level Institute

Representatives

Martina Weir SIPTU

Declan Thomas Ibec

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002869

17/07/2024

The claimant was employed as a Cleaning /Portering Operative with the respondent since 1986.This  arrangement ceased in Nov.2021 and the claimant is seeking to be reinstated to both the portering and cleaning overtime rota.She was also seeking retrospection on the basis that the claim was lodged in 2022 – she processed her grievance internally through the respondent’s internal procedure but the grievance was not upheld.

The respondent disputed that the claimant worked overtime as a cleaner and a porter  on a regular basis and contended that any overtime worked was on a sporadic and adhoc basis. It was argued accordingly that the overtime was a casual arrangement and could not be deemed to be an implied term of her contract. In 1996 the claimant was appointed to a permanent role as cleaner and it was submitted that there was no regular overtime for permanent full time roles .It was submitted that porter’s overtime was not offered to cleaners owing to the range of duties involved including heavy lifting.It was submitted that the claimant had been offered overtime since pursuing her grievance but had rejected it .It was advanced that the claimant was not entitled to be compensated for work she never did.

Introduction:

l . This case is taken by SIPTU on behalf of our member [the Complainant] against her employer  [theRespondent].

2.     The Complainant is a cleaning operative with the respondent who carried out both cleaning and portering duties on an overtime basis, within the respondent campus for 38 years, until November 2021 when this ceased without explanation or consultation.

3.     She is seeking reinstatement onto both the portering and cleaning overtime rota, with, retrospection of loss/compensation, from 16th March 2022, when claim lodged.

4.     The internal grievance procedure has been exhausted without success.

Background to this Case:

5.     The Complainant has been employed with the  respondent  since 1986.

6.     She currently works as a cleaning operative but had up to November 2021 covered both cleaning and Portering duties, the latter on an overtime basis.

7.     She works 39 hours per week and is paid €16.40 per hour.

8.     Up until November 2021 the Complainant regularly worked overtime hours, covering both cleaning and portering duties.

9.     This overtime came about due to the various scheduled events that arise on an annual basis in the ATU calendar.

10.  These would include e.g., Science Week, Exam Set Up, Conferring Week, Open Days, Engineering Week.

11.  These events required additional portering support and the Complainant would have availed of these opportunities to build up time so that she could be home to care for her children during school holidays, without suffering the additional financial burden of childcare costs.

Case History:

12.  Late in 2021 a new cleaning manager [N.McL] took the Complainant aside in the tearoom and told her that she would not be doing anymore portering overtime, as he had never heard of a situation where a cleaner did portering duties, this being his own opinion and decision, it would seem.

13.  This, after 35 years, naturally came as a shock to the Complainant.

14.  As it turned out the Complainant immediately lost both portering and cleaning overtime opportunities and no overtime on cleaning duties was offered to her for a period following this.

15.  The Complainant attempted to have the decision overturned but her request to meet with management was initially ignored.

16.  The issue was raised at joint union management meetings in an attempt to resolve the matter, but it never seemed to be a priority for management, so was not addressed.

17.  Eventually there came the appearance of progress when it was confirmed that cleaning overtime was to be made available to the Complainant except this did not materialise, and the portering overtime was not returned.

18.  A Formal Grievance was lodged on 16 March 2022, which simply stated "I was taken off the overtime portering rota".

19.  An acknowledgement was received on 28 March 2022.

20.  As no Grievance Hearing was arranged, the Complainant, on the 2 May 2023, escalated her grievance to a higher level of management.

21.  It was September before the matter was heard by HR Manager H. MCG, and an outcome issued, [which was classed as Stage l], and as this did not uphold the complaint, it was appealed to the next stage.

22.  The Stage 2 Hearing took place on 10 October 2023, and the grievance was heard by

Ca - EB.

23.  The outcome to Stage 2, issued on 16 October 2023 and did not uphold the

Complainants grievance.

24.  The Complainant escalated to the next stage, which was deemed a Stage 3, and on this occasion the Head of Faculty  - TD, heard the grievance, on 7 March 2024,

25.  The outcome to Stage 3 issued on 27 March 2024, and did not uphold the grievance.

26.  This Stage was again appealed by the Complainant, and an email sent in this regard on

16 April 2024. [p19-201

27.  However, the Respondent was agreeable to meet with SIPTU without the Complainant present and as this was not acceptable.

28.  Despite this, at the time of referral to the Workplace Relations Commission, SIPTU made a further attempt to resolve the matter locally.

29.  While initially the Respondent again sought to meet without the Complainant in attendance, a meeting did eventually take place with H. MCG, and with our member present.

30.  It was put forward by SIPTU at this meeting and in a follow up email that the calculations which issued at Stage 2 were incorrect, and the Respondent was to check into this, but would make no concession.

31.  Therefore, the complaint to the WRC remained in place.

The Case-

32.  The Complainant is currently one of 6 support staff at the respondent,’s place of work  made up of 4 Porters and 2 Cleaners.

33.  Overtime is usually notified to staff by the cleaning Supervisor, but while the Porters are still offered this, the 2 Cleaners are not notified of any portering overtime anymore, and the complainant finds this objectionable.

34.  Even the Supervisor [MB]   can avail of any overtime that becomes available, and the Contract Cleaning staff get offered any overtime that the Porters cannot do.

35.  We understand that at this present moment the Complainants work colleague is off sick, but she has been offered no additional hours to cover his shift, instead this has gone to the Contract Cleaning staff.

36.  Up to late 2021/2022, the Complaint repeatedly availed of as much overtime as she could manage, and taking this as TOIL suited her family's needs.

37.  The payslips issued do not record time taken in lieu of payment, [TOIL]. [p48]

38.  However, these overtime hours were only worked based on request and authorization from her supervisor.

39.  Once the Complainant had been requested, and agreed, to work overtime on a given day, the process was that she recorded the hours on a time sheet, [p49] on the evening before and gave this back to her supervisor who then submitted this to the estates manager, and it eventually got to payroll for inclusion on the Core hr portal. [System for recording

expenses, payslips, booking annual leave etc.]

40.  The Complainant could then access this information via a computer which was provided by the College for cleaning staff.

41.  We have a attached a printout from the Core hr system from 01 April 2005 to 01 April

2020, a period of 15 years. [p28-47]

42.  This shows the time off taken by the Complainant, the time worked and added [under adjustments] and the closing balance due.

43.  This shows that as of, 31 March 2022, the Complainant had a closing balance of 38.31 days due to her in Toil, this since reduced to 28 days. [p28]

44.  This was an accumulation of overtime hours worked by her and calculated on a rolling year basis, since 2005.

45.  This also shows that she worked overtime on 127 occasions during this time, averaging 9 per year, which we calculate to be on average, 16 days per year over 15 years.

46.  This is evidence enough of her claim but there is also the fact that the Complainant was told in November 2021, that she would no longer be offered these hours, proving that she had previously been offered these and had worked these additional hours.

47.  The figures presented by the Respondent in their Stage 2 outcome does not accurately reflect the "TOIL" overtime worked by the Complainant, and while copies of her time sheets have been requested, they have never been provided.

48.  In an email of 2 October 2024, the Respondent stated that "the employer  is not in a position to grant retrospective payments for periods of overtime or time in lieu that were not approved or undertaken. " [p271

49.  This regular overtime worked by the Complainant was taken from her without consultation or agreement, and she is exercising her right to object to this major change to the normal working arrangements that she had for over 35+ years.

50.  She has been offered no portering overtime since 2020/2021, and now no cleaning overtime either, even where this could be made available to her to cover sick leave.

51.  The outcomes from the Grievance process:

52.  Stage 1 - "0vertime related to role of Porter is not offered to  cleaners. due to the different ranges of duties, i.e. heavy  lifting ' 4. Management are not averse to offering overtime to

the claimant if it   becomes available  within  the scope of the current job  description and  contract   

. It is incorrect to say that the heavy lifting involved is the reason portering duties are not offered to the Complainant. This worker HAS carried  out portering duties, without issue, for all the years already outlined, this cannot be denied, and she has raised no issue, nor has she any issue, around any lifting involved in the role. This is not an honest assessment, and this is further demonstrated by the fact that the Complainant is no longer allowed any overtime even in her cleaning role.

54.  Stage 2- "Management have confirmed there is no rota.for portering overtime, and that cleaning overtime will be offered to the claimant if it becomes available .

55.  This outcome is again talking about the portering rota, as if to say this never existed. There was a regular amount of portering overtime available to the complainant, this is still available but is not being offered to her and as we stated she is not being offered overtime in cleaning either.

56.  Stage 3- "I understand that you have now been reinstated on the cleaning rota for overtime  and I further understand that you have since been offered  overtime hours on at least one occasion. Therefore  I regard this grievance as settled and I make no further finding. I do not believe that  your  overtime meets this threshold [regular, structured and rostered] and therefore  I cannot recommend approval of retrospective payment.

57.  The Complainant is not reinstated on the cleaning overtime roster. Further, the overtime worked by the Complainant was based on a number of key events in the University calendar year. These were for example,

     Engineering week- February =2 days x Time /Half

     Exam Set Up March= 1/2 Day x Time [Half

     Conferring Week- October =5 days x Time/Half

     Science Week- November =4 days x Time/Half

     Open Days —November = 4 days x Time/Half

58.  These were regular recurring events, and the Complainant was always rostered to work, evidence of this being the 38.31 days due to her as of 2022.

59.  Heavy lifting or suggestions that this overtime was not consistently worked by her is neither accurate nor an acceptable justification for the changes imposed upon her without warning, consultation or agreement.

60.  This was removed in a rapid and thoughtless manner, with no acknowledgement of the

Complainants employment rights and entitlements.

Conclusion:

61.  The arguments put forward by the Respondent do not stand up.

62.  Their approach has been heavy handed and ill-considered.

63.  The Complainant is seeking access to all overtime in both cleaning and portering roles going forward, in line with the conditions in place up to 2021.

64.  She is seeking financial compensation for the Respondents failure to adhere to normal industrial relations procedures in respect of their removal of this benefit from the complainant.

65.  End

It was submitted that the claimant’s TOIL was facilitated at overtime rates .It was advanced that there was no engagement with the claimant when they withdrew the overtime arrangements and it was contended that this was unfair to the claimant.It was advanced that the TOIL was taken in lieu of payment and her application for approval for TOIL were processed by the respondent but the paperwork with respect to same appeared to have been mislaid. It was submitted that compensation was warranted for the manner in which  the withdrawal of overtime was handled by the respondent.The respondent’s characterisation of the overtime as adhoc was not accurate according to the union and  the events which gave rise to the requirement for overtime were regular , that they arose on an annual basis and were an integral feature of the calendar year for example Conferring Day , Open Day , Science week etc.It was submitted that the claimant’s sense of injustice was compounded by the allocation of portering overtime to contract cleaners cleaners.

 The following replying submission to the respondent’s post hearing submission of the 28th.Nov. 2024 was received by the WRC on the 5th.Dec, 2024.

“ Our member is seeking access to overtime hours based on the working arrangement which was in place prior to end of 2021and which is verified by the records provided. This gave her access to any overtime which became available at very specific times during the  college year.

In the case of the cover for the employee who is unfortunately out sick, the claimant  is seeking a portion of the hours which require cover during this employee’s absence. The claimant  could reasonably expect to be offered at least 9 hours, and this would address her concerns. As it is she has been offered none of these hours.

The claimant is simply seeking to have the opportunity to work any additional hours that might become available”.

The case before you today relates to a complaint lodged under the Industrial Relations Act, 1969 by “the Complainant” against her employer (hereinafter referred to as “the Respondent”).

1. Background to the Complaint

1.1           The Complainant is employed by the respondent  as a “Cleaner” at an Attendant Grade. The Complainant alleges in her Complaint Form that she was removed from the cleaning and portering overtime rota in November 2021. A copy of the Complainants Complaint Form is attached at [Appendix 1].

1.2           Th Complainant lodged a Grievance with the Respondent on the 16th March 2022 alleging that she was taken off the overtime portering rota. A copy of this grievance is attached at [Appendix 2].

1.3           The Complainant’s Union Official Mr. MC then became involved in the grievance process. Ms HMcG HR Manager initially reviewed this grievance with both line managers in the context of gaining a thorough understanding of the grievance and background. The outcome of this initial stage was issued on the 19th September 2023 and the Complainants grievance was not upheld. A copy of the outcome is attached .

1.4           The complainant appealed this outcome to Stage 2 of the grievance procedure. Mr.EB, CPM heard the Complainants Stage 2 grievance. The outcome of this Stage 2 grievance issued on the 16th October 2023 and again the Complainants grievance was not upheld. A copy of the Stage 2 grievance outcome is attached .

1.5           The complainant then appealed the outcome of the Stage 2 grievance to Stage 3 of the grievance procedure. Mr.TD, HFE&T was nominated as the president’s nominee and represented senior management heard the Complainants Stage 3 grievance. The outcome of this Stage 3 grievance issued on the 27th March 2024 and again the Complainants grievance was not upheld. A copy of the Stage 3 grievance outcome is attached at

1.6           Stage 3 is the final stage of the Respondents internal grievance process, however, another attempt was made to review the issue between Siptu and the employer.

1. Respondent Position

2.1           The Complainant contends that she regularly worked overtime as a cleaner and a porter. This is disputed by the Respondent in that any overtime that the complainant had worked was on a very sporadic and ad hoc basis. The Claimant would only have worked overtime on limited occasions throughout her employment and was solely on an as needs be basis as and when the need arose.

2.2           There are a total of 4 full-time porters and 2 full-time cleaners working in the Sligo Campus. There is a roster in place for cleaning overtime in the respondent organisation relating to the two full-time cleaners. There are two full-time cleaners working 39 hours a week, one of which is the Complainant. The other cleaner does not work overtime at their own request therefore, the Complainant is the only cleaner that is offered overtime as and when it might arise.

2.3           As and when overtime may arise either for cleaners or porters it is firstly offered to the worker and the worker has the right to either accept it or refuse it. This has always been the case in the Sligo Campus down through the years. The Complainant alleges that she “regularly worked overtime” as a cleaner or a porter. This is not the case and is disputed by the Respondent. There is absolutely no pattern of regular overtime being worked by the Complainant. Any overtime worked by the Complainant was never rostered or regularised nor did such form part of the Complainants terms and conditions of employment. It is purely on a casual basis with the right to accept or refuse it as and when it might arise. It cannot be said or argued that this is an implied term of the Complainants terms and conditions that she has any guarantees of being offered overtime at any specified time.

2.4           On any occasion overtime was only ever worked based on an offer to do so which required authorisation by the employees supervisor. It only ever arose where there was a need and subsequently agreed between the employee and authorised by the supervisor.

2.5           There is historically a Union Agreement in place following negotiations whereby the appointment of contract cleaners was in parallel with agreement that part-time cleaners were offered permanent cleaning contracts. The Complainant was party to this agreement and at the time was appointed to a full-time cleaner on a 39 hour contract. In 1996, both the Complainant and the other cleaner were both appointed to a permanent role as cleaners and both were appointed to a designated cleaning area within the college. There is no regular overtime for permanent full-time roles including permanent whole time cleaners.

2.6           It is commonplace that there is no overtime for permanent cleaners however, it is not disputed by the Respondent that on infrequent occasions some cleaning overtime may be required, for example, when one colleague is on sick leave or unavailable, only then is overtime offered to the other cleaner and authorised if agreed.

2.7           Overtime related to the role of a porter is not offered to cleaners, due to the different ranges of duties, such as heavy lifting. The two roles are completely different and distinct and the Complainant is not or has never been appointed as a porter carrying out such duties.

2.8           The Complainant has been informed during the grievance process that the Respondent is not averse to offering overtime to the Complainant if it becomes available within the scope of the current job description and contract.

2.9           The Complainant was offered overtime since lodging her grievance, however on that occasion rejected the offer. Again, this is evidence of the sporadic nature of the overtime within the respondent organisation and further demonstrates the casual nature of such an offer, i.e. that it is offered with the claimant having the right to either accept it or refuse it. Overtime that is available is ad hoc and voluntary in nature

Retrospection of Pay

2.10        Over a period of approximately 20 years, the complainant was paid 207 hours of overtime spread over 39 occasions across five different functions within the campus. Thus, on average the complainant average of less than one over time hour per month over a period of 20 years.

2.11        The complainant is not entitled to be compensated or paid for work which she never did therefore retrospective pay cannot be awarded for work not carried out.

2.12        It is the Respondents position that no retrospection occurs as the alleged overtime being claimed by the Complainant is not and cannot be regarded as “regular and rostered in nature”. This proportion has been supported by the Labour Court in numerous cases such as Recommendation number LCR22677 [Appendix 6].

2.13        A similar decision from the Labour Court issued in Recommendation number LCR20968 [Appendix 7] where in contrast to the present case overtime was regularly worked. The Court concluded that overtime, “while regularly worked by the claimants, could not be classified as contractual overtime and did not meet the test of regular and rostered overtime, the reduction of which would normally attract compensation. Therefore, the Court does not recommend in favour of concession of the union's claim.

Conclusion

Adjudication Officer, on behalf of the Respondent I respectfully request that this complaint is not upheld by or on behalf of the Complainant for the reasons as set out above.

The respondent’s representative emphasised that the overtime referred to by the claimant was voluntary and was not regular or rostered. It was further submitted that the role of cleaner and porter were entirely different with the porters role involving a lot of heavy  physical work.It was submitted that the respondent was not averse to offering overtime to the claimant if it comes up at which point the claimant will have a right to reject or accept it.The respondent undertook to explore what practice applied in other colleges and would check if the claimant could do overtime for her colleague who was off on sick leave.It was submitted that the assignment of portering duties to the claimant could have collective implications.

In a post hearing submission , the respondent clarified that Cleaner 2 ‘s attendance pattern was the same as the claimant’s and consequently the claimant could not be assigned this work.It was submitted that the role  of contract cleaners is to provide both cleaning and janitorial services; contract cleaners work overtime with porters when janitorial duties are required  – the permanent cleaners do not carry out janitorial duties.The facilities manager indicated that he is happy to request the claimant to carry out cleaning works on an overtime basis as previously offered.

The possibility of scheduling a further hearing to consider the post hearing submissions of the respondent was explored by the parties but no consensus could be reached on the matter. Ultimately the parties were given notice of a reconvened hearing on the 30th.Oct.2025 but the respondent advised on the 4th.December that they were not participating in a reconvened hearing on the basis that “the respondent’s position has not changed since the conclusion of this hearing in November 2024 and the respondent has nothing further to add to this hearing and as a result will not be in attendance at the reconvened hearing on the 8th.Dec. and will await the recommendation of the Adjudicator”. The hearing proceeded on the 8th.Dec.2025 with the claimant and her union representative.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I note that the claimant is  adamant that she should continue to be offered portering overtime given that this constituted normal practise for an extended period of time(35years ) up until late 2021 when it  unilaterally ceased.I accept the union’s contention that the imposition of this change without consultation with the claimant was unfair to the claimant. .I further note that the respondent is relying on managerial prerogative to justify their change in practise  to distinguish between portering and cleaning duties.I note the respondent’s position in response to the claimant’s original  claim for retrospection as outlined in her complaint form -   that they are not in a position to pay for time not worked.  I also note that the respondent questioned the accuracy  of the claimant’s assertion that the portering work she undertook was approved by her line manager and taken as TOIL. I am satisfied that  onus for the maintenance of such records rests with the employer  and despite references to sourcing the records from “archives” – the documents were never located.The claimant was relying on this material to demonstrate that the disputed overtime was regular and an annual feature of her work pattern for the duration of her employment.I note that despite the respondent’s indication that they were not averse to continuing to offer cleaning overtime to the claimant it was only offered on one occasion since this dispute commenced and  it was declined by the claimant at the time  because of insufficient notice.