FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : DUBLIN CITY COUNCIL - AND - A WORKER (REPRESENTED BY UNITE THE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Recommendation of a Rights Commissioner R-095732-IR-10/DI.
BACKGROUND:
2. The case before the Court concerns a claim by the Union on behalf of its member currently employed as a plumbing foreman in the housing maintenance division of the Organisation. The Worker has provided an emergency on-call call out service for a number of years and is seeking the inclusion of the remuneration he received for doing so in the calculation of his pension entitlements. The Union contends that the Worker provided this service regularly and he has received substantial earnings as a result. It is the Union's claim that these earnings should be taken into consideration for pension purposes. The Employer disputes this and asserts that the earnings associated with the emergency call out service are not pensionable. The matter was referred to a Rights Commissioner for investigation and recommendation. On the 10th March 2011, the Rights Commissioner issued his Recommendation as follows:
"Having fully considered the submissions made by the parties I find that the overtime worked by the Claimant while on-call fluctuated and as a consequence the wages he received fluctuated accordingly. The payment of this overtime is therefore not included in his earnings for the purpose of calculating his pension entitlement. I therefore find that the claim fails".
On the 18th April 2011, the Worker appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with section 13(9) of the Industrial Relations Act 1969. A Labour Court hearing took place on the 22nd July, 2011.
UNION'S ARGUMENTS:
3. 1. The Worker provided a regular and recurring emergency on-call service and while the earnings associated with the service fluctuated, the pattern of work did not.
2. The overtime carried out by the Worker was not optional and formed a part of the Worker's role.
3. The Union on behalf of its member contends that the benefit sought by the Worker has already been received by his colleagues and so should be provided to this Worker accordingly.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker received an allowance for the provision of the on-call service. This allowance is pensionable and will be included in the calculations of the Worker's pension entitlements. However, any overtime earnings are not pensionable and are therefore excluded.
2. The volume of overtime carried out by the Worker fluctuated and did not form a regular and recurring pattern.
3. Concession of the Union's claim could have further financial implications for the Employer including the potential of knock-on claims.
DECISION:
This is an appeal by a Worker of a Rights Commissioner’s Recommendation. The matter before the Rights Commissioner concerned the Claimant’s claim that overtime earnings which he earned as a result of providing regular on-call emergency service should be included in his earnings for the purpose of calculating his pension entitlement. The Rights Commissioner found against the Claimant’s claim.
At the outset the City Council raised a preliminary matter and submitted that the Labour Court does not have jurisdiction in the matter of pensionability of allowances under the Local Government Superannuation Scheme. It submitted that there was a prescribed process for dealing with such matters which provides for an investigation and determination by the Pensions Ombudsman following an internal review by the Local Authority. Circular letter S13/2003 outlines the procedure to be used by all Local Authorities.
The Court notes that the internal procedures as prescribed by Circular letter S13/2003 have not been utilised in this case. Furthermore the Court notes that Circular letter S13/2003 was not introduced at the hearing before the Rights Commissioner. The Court is of the view that in determining the merits of this case the recognised internal procedure is the appropriate mechanism for consideration of the Claimant’s claim and accordingly such procedures should be utilised and exhausted.
In making this Decision the City Council has confirmed to the Court that there is no impediment on the Claimant exercising his rights under Circular letter S13/2003 at this stage.
Accordingly, the Court decides that the Union on behalf of the Claimant should invoke the appropriate procedures under Circular letter S13/2003 to determine the Claimant’s claim. For the avoidance of any doubt the Rights Commissioner’s Recommendation has no standing, as the Court has not considered the merits of the substantive claim.
Accordingly, the Rights Commissioner’s Recommendation is set aside.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th July 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.