ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  IR - SC - 00003130

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              09/04/2025

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended) 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 information relevant to the dispute.

Background:

This claim concerns a dispute between the Worker, who is a Sanitary Caretaker and a County Council over unpaid wages and allowances.

Summary of Workers Case:

The worker  operates the Treatment Plant (Plant “I”) but has been denied contractual entitlements, including overtime, weekend allowances, and emergency on-call payments  Despite the Worker’s adherence to his role’s 24/7 demands, the Council imposed unilateral restrictions on remote work, withheld approved payments and failed to provide a vehicle as required . The Worker also faced micromanagement and disciplinary threats, contravening fair procedures. It is submitted that the Council’s actions violate the Worker’s contract, union agreements and Circular S 12/91, and seek redress for these breaches.

The worker is owed 12 1/2 hours of overtime, calculated at the overtime rate of time and a half, which is €27.83 per hour, equalling €347.88. The worker is also owed 2 days of bank holiday pay, which amounts to €296.80. Furthermore, the worker was not paid for 38 on-site allowances, which are owed at €1.90 per day, totalling €72.20. Finally, the worker was not paid for one weekend allowance, which totals €85.  We also submit that the worker has not been paid the emergency on-call allowance, despite arguments provided as to why he should have been entitled to this payment. The worker has not received this payment since starting the employment, even though he has been on emergency on-call duty for the entire duration of this period. In total, we believe the worker is owed 211 weeks of emergency on-call allowance at a rate of €75 per week, which equals €15,825. 

It is submitted that the worker should have had access to a vehicle while on call to carry out his duties. However, he was never provided with a vehicle, as required by the supplementary agreement. Consequently, he should have been reimbursed for mileage at the civil service rates since he began his employment in 2021. Unfortunately, this reimbursement was never provided to him. Given the complexity of calculating mileage for every call-out over the past four years, especially with the varying mileage rates issued by the civil service in recent years, we therefore request that the adjudicator provide compensation for the council’s failure to provide a vehicle as stipulated in the agreement. We seek redress for the additional mileage placed on his personal car, the associated fuel costs, and general wear and tear resulting from carrying out his duties without the appropriate vehicle.

It is submitted that the grievance process and efforts to seek resolution have extended for more than two years. Due to the harassment, threats of disciplinary action, non-payment of allowances, and the excessive time taken to resolve these matters, we are seeking compensation for the unfair treatment. The worker was subjected to micromanagement, disciplinary threats, and accusations of fraud, as documented in Appendices 22, 28, and 31, all of which contravened the Dignity at Work policy.

We also submit that any recommendation issued should request that the council conduct a review of overtime, as we believe that the overtime has become regular and consistent. As such, we contend that it should be considered for superannuation purposes, in accordance with Circular 12/91. Any monies paid in relation to overtime should therefore be included as pensionable, and accounted for in the worker's pension calculations. Total (excluding mileage and pension review): €18,075.48.

Summary of Employer’s Case:

The post of Sanitary Caretaker is a long standing national post in the local authority water services sector.  The range of duties are contained in the worker’s contract (supplied) which encompasses the Supplementary Agreement agreed with the Trade Unions.

It is submitted that many of the Worker’s claims in this case concern payment of wages and are not appropriately submitted under the Industrial Relations Act, as that act prohibits investigation of a complaint that concerns rates of pay or conditions which affect a body of workers.  The Employer employs 90 Caretakers in Water Treatment Plants.

The Supplementary Agreement recognises that the nature of the work means availability on a continuous basis and that the specific hours of work on specified days cannot be laid down.

However, the contract for the worker in this case provided that initially the requirement to work 40 hours over 7 days would not be required.  As no weekend work was required the weekend allowance would not apply. 

Prior to signing the contract on February 24th 2021, an email was sent by the Recruitment Section to the Worker to answer queries raised by him in relation to weekend work, mid day work and remote working. The email outlines that weekend working was not required but will be reviewed when water production increases.   

Allowances

The worker receives the following allowances:

Annual lump sum in recognition of always being on call

Annual payment for non reduction in the working week

Meal allowance when working for longer than 10 hours where there are no facilities (this was paid to him on 33 occasions)

Eating on site allowance which is a tax free allowance where working on site with no facilities for 1.5 hours before lunchtime and 1.5 hours post lunchtime.  He was paid this on 787 occasions.

Weekend allowance – paid 151 occasions – this is payable where you work part of your 40 hour working week at weekend.

Claims

There has been a series of claims by the Worker regarding working hours and attendance.

There was an agreed resolution of issues in November 2021 setting out agreed outcomes and actions.  The list included the issues:

• - Approval of extra hours to handle a backlog
• - Agreement for a proposed structure of weekly hours to be submitted to ensure operation of the plant on a 40 hours over 7 days with minimal overtime.
• - Overtime is paid on the basis of hours worked, no minimum hours, pre-approval necessary and signed off by management on a time sheet.
• - Temporary weekend allowance to commence from 13/10/2021.
• - Travel expenses are not paid unless as part of an emergency attendance.
• - Overtime and travel continue to be paid as part of emergency attendance.
• - Pre-approval is required before undertaking any emergency attendance
• - Two annual supplementary payments in recognition of the 24/7 nature of the role and the non-reduction in the working week.
• - References to clarification re remote working and public holidays.

Arrangements were put in place to pay the relevant arrears.

During 2022 and 2023 additional claims were made by the worker.

31/05/2023         claim for allowances/hours worked/annual leave.

Management undertook a review of the worker’s claims for the period April to November 2021.    At that point a full and final settlement figure of €953.07 was proposed covering 8 weekend allowances, 4 meal allowances and 6.5 overtime hours.

There have been a considerable amount of queries, calls, conversations and emails about the worker’s claims seeking to be paid for overtime hours with the Employer re-iterating the need for overtime to be pre-approved.

The Employer is satisfied that the arrangements regarding pre-approval for overtime have been communicated to the worker on several occasions and that only pre-approved overtime would be paid.

The Employer cannot operate where a staff member can work overtime without pre approval and then seek approval afterwards.

The Employer has engaged with the worker and his Union Representative extensively in a effort to resolve his issues.  However it cannot concede the payment of unapproved overtime.

Conclusions:

The worker in this case has multiple claims for overtime payments, on call allowance, eating on site allowances, weekend allowances, public holiday pay, access to a vehicle / reimbursement of mileage payments.  I note there was a full and final settlement in relation to some of these issues.

Section 13 (2) of the Industrial Relations Act, 1969 provides,

Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

The Labour Court has taken a dim view of Adjudication Officers inserting a solution into a dispute where there would inevitably have knock on effects and where there is no jurisdiction at first instance.  In light of the fact that the Employer in this case employs many more Caretakers, I cannot make a definitive recommendation in relation to the Worker’s claim to have certain allowances and transport arrangements applied to him.

I note the Employer’s point that overtime must be pre-approved. I note the disagreements between the worker and his manager that have arisen in relation to this and other matters.                                   I recommend that both parties agree on a Mediator to work out the recurring disagreements between the worker and his manager and this may also review if monetary compensation for a defined period of time is appropriate to close this dispute. 

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend that both parties agree on a Mediator to work out the recurring disagreements between the worker and his manager and this may also review if monetary compensation for a defined period of time is appropriate to close this dispute. 

Dated: 18th June 2025.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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