RECOMMENDATION NO. LCR22680
SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990
OFFICE OF PUBLIC WORKS
- AND -
1 GENERAL OPERATIVE
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
|Employer Member:||Mr Marie|
|Worker Member:||Mr Hall|
1.Reckonability of Regular Rostered Overtime for Pension Purposes
2.This dispute could not be resolved at local level and was the subject of Conciliation conferences on 7March, 13May and 18August 2022 under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 1 September 2022 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 1 November 2022.
3. 1. The Union seeks to rely on the criteria laid out in Circular EL 12/19, i.e. that the overtime - was part and parcel of the workers employment, was not optional, was work of a regular and recurring nature, and was not occasioned by staff shortages.
2. The Union seeks that the Worker's final pension figures are re-calculated and all outstanding monies, both weekly and as part of his gratuity are reimbursed to the Worker from the date of retirement.
4. 1. The Employer position is that the overtime in question was optional and therefore not regular or rostered.
2. The Employer maintains that all overtime which can be accepted as pensionable within DPER regulations as covered by Section 6.3 (c) of the DPER Superannuation Handbook 2007 has been included.
The dispute before the Court relates to SIPTU’s claim on behalf of a retired General Operative to have overtime worked by him reckoned for pensions purposes.
The Employer raised a preliminary issue and submitted that as the Worker retired on the 30thJune 2021 and the complaint was not referred to Conciliation until the 10thJanuary 2022, the Court does not have jurisdiction to hear the complaint.
The Union submitted that they were involved with the Employer in ongoing discussions around this issue and that was why the dispute was not referred in earlier. The Union requested that the Court extend the time limit for reasonable cause.
Section 26A Industrial Relations act 1990 states
(1) “Notwithstanding any other provision of this or any other enactment, but subject to subsection(2) an adjudication Officer or the court shall not investigate a trade dispute to which a worker who has ceased to be employed be reason of his or her retirement is a party unless
(2) Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.
The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -
The Court is satisfied that the Worker’s claim was referred to conciliation outside of the statutory time limit. The Worker’s last date at work was 30thJune 2021. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place. As the Worker’s claim was not referred to conciliation until the 10thJanuary 2022, it was outside of the statutory time limit. The Court finds that the reason proffered by the Worker while it might explain the delay, does not afford an excuse for the delay.
- It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The Court finds that the claim is out of time and the Court does not have jurisdiction to hear the substantive claim.
|Signed on behalf of the Labour Court|
|15 November 2022||Deputy Chairman|
Enquiries concerning this Recommendation should be addressed to David Campbell, Court Secretary.