Labour Court Database __________________________________________________________________________________ File Number: CD89647 Case Number: LCR12610 Section / Act: S67 Parties: DUBLIN CORPORATION - and - IRISH MUNICIPAL EMPLOYEES' TRADE UNION |
Claim for the restoration of an overtime payment of #21.42 to a worker.
Recommendation:
5. Having regard to the circumstances in which the original
mistake occurred, the Court recommends that the payment made to
the worker and subsequently withdrawn from him, be restored.
Division: Mr O'Connell Mr Collins Ms Ni Mhurchu
Text of Document__________________________________________________________________
CD89647 RECOMMENDATION NO. LCR12610
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 67
PARTIES: DUBLIN CORPORATION
and
IRISH MUNICIPAL EMPLOYEES' TRADE UNION
SUBJECT:
1. Claim for the restoration of an overtime payment of #21.42 to
a worker.
BACKGROUND:
1. The claimant is employed as a supervisor in the Corporation's
Waterworks Department at Marrowbone Lane Depot. He was due to go
on two weeks' annual leave last March and applied for two weeks'
pay in advance. When he received his wages on the last pay day
before his holidays there was only one week's holiday pay
included. He didn't query this at the time and went on holiday.
At the end of his first week's holiday he went to the depot to see
if the cheque for his second week's holiday was there for him.
After some enquiries by the staff, he was informed that his cheque
was available and could be collected by him if he went to the
Civic Offices, which he did. His supervisors (his Inspector, his
Section Engineer and the Senior Executive Engineer over the
Waterworks Distribution Section) returned him for 3 hours overtime
at T.50, making 4.50 hours and the Wages Department subsequently paid
him #21.42. However, when the Personnel Department discovered the
payment, they took it back from him, claiming it had been paid in
error. The Union sought the restoration of the money but this was
refused. No agreement was reached locally and the matter was
referred to the conciliation service of the Labour Court on the
30th June, 1989. No settlement was reached at a conciliation
conference on the 5th September and the matter was referred to the
Labour Court for investigation and recommendation. A Court
hearing was held on the 12th October, 1989.
UNION'S ARGUMENTS:
3. 1. In making this payment to the claimant, Management in the
Waterworks Department were not granting a special concession
to him. He was not singled out for favourable treatment. In
fact, they were adhering to a long-standing practice whereby a
person left short of his pay through the fault of the
Corporation and who has to collect it in his own time,
receives three hours overtime. It does not happen very often,
but when it does, this is the traditional remedy.
2. The Personnel Department based its decision to take back
the money on a circular previously issued to Department Heads
that overtime had to be curtailed as far as possible. The
Union acknowledges that this is the official position of the
Corporation. On the other hand, the Senior Executive Engineer
authorised the payment and it should therefore have stood.
Furthermore, neither Waterworks Management nor the Personnel
Department, in the absence of an overtime payment, set up an
alternative arrangement to enable staff off-duty to obtain pay
which they had not received through a Corporation error. When
he called to the Depot seeking his cheque, he was abiding by
the traditional practice.
3. The Personnel Department has argued that he made no
attempt to obtain the missing cheque until Thursday, 23rd
March. However, being a night worker, none of the day time
clerical staff were available. He assumed each night before
commencing his leave that the cheque would be there when he
came on duty and additionally, while he had requested two
weeks' pay in advance, under normal circumstances, the missing
cheque would have been due to him on 23rd March.
4. This argument by the Corporation is an attempt to detract
from the main issue. A mistake had been made in the Wages
Section, and seemingly, when it was spotted in that Section, a
further cheque was drawn. However, no attempt was made to get
the cheque to him, and the reality of the situation was that
he was left entirely in the dark about the missing cheque. It
was a Corporation error and responsibility rested with the
Corporation to sort it out.
5. Presumably, the Waterworks Management, in deciding on the
overtime payment to the claimant, accepted the Corporation's
responsibility. After a fashion, the Personnel Department did
so as well. They offered him time off in lieu for the time
involved. This was a recognition that he was entitled to
compensation, but it was offered after the #21.42 had been
clawed back. Personnel should have let the payment stand,
which in overall Corporation terms was a negligible sum, and
recognising that it had breached their overtime ruling, should
have instructed Waterworks Management to institute a new
arrangement, not involving overtime payment, to cope with
similar situations in the future.
6. The Union regrets involving the Court in such a minor
dispute. The amount of public money that has been expended by
the Corporation on this one item is unjustified and it does
not assist the unions in convincing their members that the
repeated pleas of financial hardship by the Corporation are
sincere. At no stage has the Corporation made a genuine
effort to find a resolution to this dispute.
CORPORATION'S ARGUMENTS:
4. 1. The claimant was returned on the wages sheets for
week/ended 5th March, 1989 for the hours worked during that
week and the wages section was notified by the Waterworks
Section that annual leave had been approved for him in respect
of the period 14th to 29th March, 1989 and requested prior
payment in respect of that period. The Wages Section
processed the wages return as part of the overall return of
the section for the week. A cheque was drawn in respect of
the hours worked in week/ended 5th March, 1989 and a further
cheque was drawn in respect of one week's annual leave. This
latter cheque should have been for two weeks' annual leave.
The Wages Section detected the omission and arranged to have a
special cheque for the second week's annual leave drawn. This
second cheque was available for collection by the claimant as
and from Thursday, 9th March, 1989.
2. The claimant did not query the omission of payment in
respect of the second week's annual leave when he received
payment of his wages on 8th March, 1989. In fact, he did not
make any enquiry in the matter until he decided to come into
the Waterworks Depot on 23rd March last.
3. The Wages Sections in Dublin Corporation calculate the
wages of 4,838 employees and it is the standard practice each
week that employees who consider that they are short paid
raise the fact with a view to obtaining immediate payment.
The initiative in regard to claims for short payment of wages
is by custom and practice that of the employee.
4. The Corporation did make and offer in direct discussions
to grant the claimant time off in lieu on an ex-gratia basis
in respect of the 23rd March, 1989. The Union rejected that
offer. The Corporation confirmed that offer - on a hour for
hour basis, to be granted at the convenience of the
Corporation - to the Union again at the conciliation
conference. The offer was rejected at that stage also. The
Corporation is satisfied that its offer of time off in lieu is
very generous and that it should be accepted.
5. The working of overtime can only be approved by an
Assistant City Manager who would only approve of it in the
case of an emergency affecting a Corporation service (details
supplied to the Court). The circumstances in this case did
not constitute an emergency to a Corporation service.
Consequently, the approval of an Assistant City Manager would
not be forthcoming. The principle that overtime working must
be strictly limited to genuine emergencies in respect of
Corporation services has to be enforced by the Corporation in
all cases in view of the continuing serious financial position
of the Corporation.
6. The Corporation's financial position has deteriorated
significantly since 1983 and the estimates for 1989 are based
on the reduced service levels that applied in 1988 (details
supplied to the Court).
RECOMMENDATION:
5. Having regard to the circumstances in which the original
mistake occurred, the Court recommends that the payment made to
the worker and subsequently withdrawn from him, be restored.
~
Signed on behalf of the Labour Court
John O'Connell
_____________________
27th October, 1989 Deputy Chairman.
D.H./J.C.