LCR22979

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00038837 (CA-00049848)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Recommendation to the Labour Court on 5 April 2023 in accordance with Section 13(9) of the Industrial Relations Act, 1969.

 On 1 March 2023 the Adjudication Officer issued the following Recommendation.

“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.

I cannot make a recommendation that is favourable to the Worker for the reasons set out above.’’        

A Labour Court hearing took place on 21 May 2024.

DECISION:

This is an appeal by the Worker of Recommendation ADJ-00038837 of an Adjudication Officer in respect of the Worker’s claim for the payment of the 10-hour day allowance in respect of his shift on the 18/19 February 2021. The Adjudication Officer did not uphold his claim

  The Union on behalf of the Worker submitted that he was on night duty on 18th February 2021. He completed a run from Ramelteon to Altnagevlin hospital in Derry. He then did a run from Letterkenny University hospital to Dublin. He submitted a claim for the 10-hour day allowance. However, management refused same on the basis that he had not been more than 8km from his base for a 10-hour period and deemed that he was only entitled to a 5-hour day rate. The Worker processed his complaint through the Employer’s grievance procedure, but his complaint was not upheld. He then referred the matter to the Adjudication services of the WRC.  It is the Unions submission that the Worker left his base at 23.23 and did not return until 1200 hours the following day, so is entitled to the 10-hour subsistence rate.  The Union in support of their claim cited the following extract from an update given by Ms Monica Percy, HSE Governance and Compliance Manager- Finance Specialist- National Finance Division which states

 “So as an example-travelling within an 8km perimeter of your base all day and doing one trip that is say 10km requiring a duration of approx.an hour- would not entitle staff to day allowance. On the other hand- taking trips requiring absence from the base all day both within and outside the 8km- if at least 5 hours of this travelling was spent outside of the 8km threshold, then you would be entitled to a day allowance.The key issue is the duration of absence away from the 8km threshold”.

 The Union submitted that the Workers first trip was 3 hours, and second trip was 9 hours so in total he was at least 10 hours outside of the 8km threshold and based on the above explanation should be entitled to the 10-hour rate.

The Employer submitted they are operating in accordance with national guidelines and Department of Public Expenditure and Reform Circular 13/2019.  The Worker received a 5-hour subsistence payment in line with the requirements of those circulars.  The breakdown of the Workers shifts on the 18th February 2021 is as follows;

Call one:  Left Letterkenny Ambulance station at 23.25 to respond to a call in Ramelton, transported a patient to Altnagevlin Hospital in Derry. Departed Altnagelvin at 2.05am and returned to Letterkenny at 2.41am total duration 3 hours and 16 minutes.

Call two: Left Letterkenny Hospital at 3.08am for a patient transfer to Beaumont Hospital in Dublin and returned to Letterkenny Ambulance Station at 12.00 noon, total duration 8 hours and 52 minutes.

As neither of the journeys were 10 hours or greater subsistence was only payable for call two which was greater than 5hr but less than 10hrs.  The Worker was not paid the 10-hour subsistence rate as he did not meet the qualifying criteria. The Employer does not accept that the clarification provided by Ms Percy can be read to give an entitlement to the 10hr rate when less than 10 hours have been spent outside of the 8km limit. There is no provision in the circular for cumulating absences as is being contended for by the Worker.    

Decision

 The Court notes there is no dispute between the parties in respect of the actual time spent away from base and that it is accepted that there are two day rates, a 5-hour rate and a 10-hour rate. The Court has read the relevant circular and the clarification the Union are seeking to rely on. The Court finds that the criteria set out in the circular that a 5-hour rate is payable for an absence when the Worker is more than 8km from his base for more than 5 hours, and a 10 hour is payable when a Worker is more than 8km from his base   for more than 10 hours. As the Worker in this case was not absent on either call for more than 10 hours outside the 8km threshold as provided for in the relevant circulars, his claim must fail.

 The recommendation of the Adjudication officer is upheld.

 The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
6 June 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.