FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 26(1), INDUSTRIAL RELATIONS ACT, 1990 PARTIES : MAYO COUNTY COUNCIL (REPRESENTED BY LGMA) - AND - SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr Foley Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. 1) Loss of Earnings on Winter Gritting 2) Travel Expenses 3) Exclusion of an Absence from Sick Leave Entitlement.
BACKGROUND:
2. The case before the Court concerns a dispute between the Employer and the Union on behalf of its member employed as a General Operative in Mayo County Council. The dispute relates specifically to issues arising during the Claimant's time spent in a temporary position as Acting Foreman. The Employer rejects the Union's claim. The dispute could not be resolved at local level and was the subject of a Conciliation Conference under the auspices of the Labour Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on the 26th August, 2015, in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on the 25th February, 2016.
UNION'S ARGUMENTS:
3. 1. The Union maintains that the Claimant was assured his overtime earnings arising from participation in the Winter Maintenance Programme would not be affected prior to accepting the acting-up position.
2. The Claimant was not permitted to take a Council vehicle home after work hours whereas his counterparts were allowed to do so. Accordingly the Claimant is seeking the payment of travel expenses incurred while he was required to use his own transport to travel to and from work.
3. The Union is of the view that the Claimant's sick leave absence in 2014 should not be recognised as sick leave for the purpose of calculating the Claimant's sick leave entitlements going forward.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer contends that the Claimant was unable to participate in the Winter Maintenance Programme as he was required to fulfil his supervisory duties elsewhere at that time.
2. The Employer is not permitted to reimburse travel expenses associated with the Claimant travelling to and from his place of work during the period when he did not have the use of a Council vehicle.
3. The Employer is not in a position to alter the terms of its sick-pay scheme.
RECOMMENDATION:
The Court has considered carefully the written and oral submissions of the parties. The claims before the Court relate to (a) Access to work on the Winter Maintenance Programme, (b) compensation for lack of availability of Council vehicle, (c) exclusion of a sick absence for the purpose of calculating thresholds within the scheme.
Access to work on the Winter Maintenance Programme
The Claimant contends that his exclusion from the Winter Maintenance Programme consequent on his promotion has resulted in a significant loss of earnings of the order of €9,220. The Claimant seeks payment from the Council in this amount. The Claimant agreed before the Court that additional earnings were available to him as a member of the on-call roster for out of hours work but stated to the Court that he found it difficult to participate in that roster because of the uncertainty of its operation.
The Council states that the Claimant had been placed on an on-call roster which provided additional earnings. The Claimant, at his request, was removed from this roster on 3rdDecember 2014. The Council contended that the Claimant could not continue on the Winter Maintenance programme during his normal working day while he was in role of Acting Foreman with responsibility for supervision of Gateway staff.
Detail has been supplied to the Court as regards the earnings of staff on the Winter Maintenance Programme and on the on-call roster in the relevant period of this claim. It is clear that some differential in earning capacity exists as between participation in these two activities.
The Court accepts that the Claimant may have had some misunderstanding as regards his participation in the Winter Maintenance Programme while in the role of Acting Foreman. The Court accepts also that significant opportunity to earn additional income was available to him through the on-call roster. In all of the circumstances the Court recommends that the Council pay to the Claimant the sum of €4,000 in full and final settlement of this mater for the duration of his appointment as Acting Foreman.
Compensation for lack of availability of the Council vehicle
The Claimant contends that he received an assurance that he would be in a position on his promotion to take a Council vehicle home each day. He contends that the Council’s failure to facilitate him in this manner resulted in him using his own vehicle to travel to and from work each day. He maintains that other persons in similar positions to himself were facilitated with access to a Council vehicle. He maintains that in these circumstances he should be compensated for the cost of the use of his own car to travel to and from work during the period between his promotion and the agreement of the Council to allow him to bring a Council vehicle home each day.
The Council contends that, at the time of the Claimant’s promotion, arrangements as regards the use of Council vehicles in the Castlebar Municipal District were different to other districts within the Mayo County Council structure, i.e. staff in the Castlebar Municipal District were not allowed to bring Council vehicles home each day while staff in other districts were allowed to do so. The Council set out to the Court that issues around the availability of Council vehicles in the Castlebar Municipal District were resolved within four months of the Claimant’s promotion. The Council states that the resolution of this matter in late 2014 resulted in a range of personnel in the Castlebar Municipal District, including the Claimant, being allowed to bring Council vehicles home with effect from that time. The Council rejected the proposition that any payment, in the form of compensation or otherwise, could be made to the Claimant in respect of travel to and from work.
In all the circumstances of this matter the Court cannot recommend in favour of concession of this claim.
Exclusion for reckoning purposes of a sick absence
The Claimant contends that a particular sick absence in October / November 2014 should be excluded for reckoning purposes from the terms of the sick pay scheme in operation in the Council. That scheme provides for limitations on sick pay entitlement calculated over a period of years taking account of sick absences within the reckonable period. The Claimant contends that the nature of the illness which gave rise to his absence in 2014 was such as to justify its exclusion from the terms of the scheme for reckoning purposes.
The Council contends that no facility exists within the scheme to exclude certain absences / illnesses from the scheme for reckoning purposes in application of the rules of the scheme.
The Court does not recommend in favour of the exclusion for reckoning purposes within the rules of the Council’s sick pay scheme of the Claimant’s absence in late 2014.
Signed on behalf of the Labour Court
Kevin Foley
21st April 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to Sharon Cahill, Court Secretary.