FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : EGIS ROAD TUNNEL AND OPERATION IRELAND LTD - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. Appeal of Right Commissioner Recommendation No R-156101-IR-15/JT
BACKGROUND:
2. This dispute concerns a claim by the Worker that her terms and conditions have been changed without her consent. This dispute was referred to a Rights Commissioner for investigation and recommendation. On the 18th January, 2016 the Rights Commissioner issued the following Recommendation:-
- "I have considered the submissions of both parties. It is clear that the Claimant is working an average of 21.75 hours per week but being paid for 24 hours per week. In other words she is being paid for time she does not work. I recommend that she be paid for the hours she actually works. I do not find the claim well founded and it fails."
On the 16th February, 2016 the Employee 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 30th of March, 2016.
UNION'S ARGUMENTS:
3. 1. Since 8th of July 2013 additional shifts have been added to the Worker's roster without her consent.
2. The Worker was consistently rostered to work on 2 shifts on and 6 shifts off for almost three years prior to the change of terms and conditions. This was in accordance with her contract.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker is required contractually to work 24 hours per week in order to receive her salary which is calculated on this basis. An error allowed the worker to be paid for 24 hours per week despite only working an average of 21.75 per week.
2. Working 24 hours per week is not a change to the Worker's terms and conditions, as it is a contractual requirement.
DECISION:
This is the Worker’s (hereafter ‘the Appellant’) appeal from a recommendation of the Rights Commissioner dated 18 January 2016. The notice of appeal was received by the Court on 16 February 2016. A hearing of the Court took place on 30 March 2016.
The dispute relates to the rostering of the Appellant and her rate of pay.
Facts
The Appellant has been employed as a part-time permanent toll collector at Dublin Port Tunnel since 27 September 2010. She is contracted to work 24 hours per week on a 12-hour shift basis, Monday to Sunday. The Appellant, in fact, was rostered to work only 21.75 hours per week on average, although she was paid for 24 hours’ work per week. This error came to light in 2013 following a review of toll collector contracts of employment.
The hourly rate of pay which applies to this grade is €12.21 plus €2.14 hourly shift premium. These rates were the subject of a 2008 Labour Court recommendation (CD/08/164). The Appellant’s contract of employment provides for an annual gross salary of €14,475.72 plus a shift premium of €2,533.25 (17.5%), paid monthly in arrears.
The Respondent brought the rostering error to the Appellant’s attention in June 2013 and advised her that the roster would be adjusted with effect from Monday 8 July 2013. The Appellant thereafter invoked the internal grievance procedure. The outcome of that process confirmed that the Appellant had been overpaid as a consequence of the rostering error. The Respondent offered the Appellant a number of options going forward: to continue working a 21.75 hour week on commensurately reduced pay or to work a 24-hour week as per her contract of employment. The Appellant continued to work under protest without indicating a preference for either option. In April and October 2014, her union on her behalf submitted a claim for outstanding remuneration for the additional shifts the Appellant believed that she had been working since July 2013.
Union Submission to the Court
The Union submits that the Respondent unilaterally changed the Appellant’s contractual terms on 8 July 2013 when it adjusted the roster to provide her with 24 hours’ work per week over two shifts followed by 5 shifts off. The Union further submits that the Appellant has been rostered to work additional shifts since July 2013 for which she hasn’t been remunerated. The Union is seeking a payment of €2,436.66 in respect of this alleged underpayment.
The Respondent’s Submission to the Court
The clause in the Appellant’s employment contract that provides that she would work an average of 24 hours per week “from Monday to Sunday working 2 shifts on, 6 shifts off either during the day or night” contains a typographical error which gave rise to an arrangement whereby the Appellant was rostered to work an average of 21.75 hours per week rather than 24 hours per week. The reference in the aforementioned clause to ‘6 shifts off’ should have read ‘5 shifts off’. Only the latter wording is consistent with the Labour Court recommended hourly rate of pay and the gross annual salary provided in the Appellant’s employment contract. To hold otherwise would result in the Appellant enjoying a higher rate of pay than any of her colleagues employed to do the same job.
The rostering error resulted in an overpayment to the Appellant of €1,427.40 per annum to the Appellant. The Respondent is not seeking repayment of this overpayment.
Recommendation
The Court finds that the Appellant’s contract clearly provides for an average working week of 24 hours. The reference in her contract to those hours being worked over 2 shifts and followed by 6 shifts off is manifestly a typographical error. The error gave rise to the anomalous situation whereby the Appellant was rostered to work an average of only 21.75 hours per week between September 2010 and July 2013 although she was in fact paid throughout for 24 hours’ work per week. In effect, she enjoyed a higher hourly rate of pay during this period than that recommended by the Labour Court in 2008 and provided for in her contract of employment.
Having considered the parties detailed written and verbal submissions, the Court can find no basis on which to disturb the Rights Commissioner’s recommendation. That recommendation stands and the appeal fails.
The Court so recommends.
Signed on behalf of the Labour Court
Alan Haugh
4th April 2015______________________
JKDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.