PWD1623

This is the Worker’s appeal from a decision of the Rights Commissioner (r-148528/148531-pw-14/JOC) dated 28 September 2015 wherein the Rights Commissioner found that the Worker’s complaint under the Payment of Wages Act 1991 (‘the Act’) was not well founded. The notice of appeal was received by the Court on 27 October 2015. The Worker is referred to hereafter as ‘the Complainant’ and Cork City Council as ‘the Respondent’. A hearing took place in Cork on 23 March 2016. The Court subsequently received additional records and written observations on them from both parties.

The dispute in these proceedings concerns payment of an “Early Morning Allowance” of 10 hours per week that the Complainant claimed and received between April 2002 and August 2014 when the Respondent discontinued it. The monetary value of the payment at the time it came to light was €319.40 per week.

Background

The Complainant commenced employment with the Respondent on 14 July 1983. He was initially appointed as Temporary General Operative, Cleansing Section but currently holds the position of Assistant General Foreperson, Cleansing Section. The Complainant’s basic weekly pay is €1,245.69.

There is a comprehensive agreement in place between Respondent and SIPTU entitled “Revised Supervision Arrangements for Street Cleaning Service Plan” dated 9 August 2006 (hereafter “the 2006 Agreement”) that provides full details of the pay scales applicable to all of the Respondent’s Cleansing Forepersons and also lists the rostered hours for each individual Foreperson. The Complainant is a signatory to the Agreement on behalf of the Union. The 2006 Agreement makes no reference to the Early Morning Allowance which is the subject of this appeal.

Complainant’s Submission

The Complainant submitted that the disputed allowance is properly payable to him within the meaning of the Act. He states that he has been in receipt of a shift allowance since 1992 because he worked the early morning shift in the city centre. This shift was agreed at the time, he submits, with the then General Foreman, S�L. The Complainant submits that he also undertook additional supervisory duties at the time between 14.00 and 16.30 in the city centre. He received no additional payment for these additional supervisory duties.

In March 2002, the Complainant advised that he was no longer in a position to continue to perform the additional afternoon supervisory duties. This coincided with a change in personnel whereby S�L was about to hand over to his successor, DD. The Complainant then raised the fact that he had never received payment for the additional supervisory afternoon hours. He submits that as a consequence it was agreed between the Complainant, S�L and his successor that the Complainant would continue to receive the 10 hours’ allowance per week ‘in perpetuity’ in lieu of his bringing a claim at that time for retrospective payment.

The payment of the allowance to the Complainant continued until 8 August 2014 under the direct ‘watch’ of 9 successive Cleansing Department Engineers who each signed off on the payment. The payment of the allowance continued post the coming into effect of the 2006 Agreement. The discontinuation of the payment on 8 August 2014 constitutes an ongoing unlawful deduction from the Complainant’s wages.

Respondent’s Submission

Under the terms of the 2006 Agreement, the Complainant – as the Foreperson assigned to the city centre –is rostered to work a 39-hour week (inclusive of lunch breaks) and on average one additional hour per week. He undertakes early morning work from 6.00 a.m. each day, Monday to Friday, as part of his 40-hour week. The Complainant is rostered to work 10 fewer hours than other Assistant General Forespersons. The rationale for this is to compensate the Complainant for working unsociable hours i.e. 5 early mornings. The 2006 agreement provides, however, that the Complainant is paid for 49 hours per week.

A review of payments to employees in the Respondent’s Cleansing Department was undertaken in 2014. In the course of the review, it was discovered that the Complainant was claiming and being paid for 59 hours per week i.e. 10 hours per week over and above the payment provided for in the 2006 Agreement. The Respondent confirmed by letter dated 8 August 2014, that the payment of the 10 additional hours to the Complainant would cease with immediate effect, as – in its view- the payment was in contravention of the 2006 Agreement and there could be no basis outside of that 2006 Agreement for claiming them.

The Respondent submits that on examination of its payroll records it is clear that the Complainant was paid in full at all times for the period when he worked between 2.00 and 4.30 pm (i.e. between 1992 and 2002). In 2002, when the Complainant stopped working between 2.00 and 4.30 pm his rate of pay should have been reduced and he should have been paid only for the hours he worked.

Discussion and Findings

The Court has considered the detailed payroll records for 1999 and 2001 submitted by the Respondent and which clearly demonstrate that the Complainant’s core hours were 7.15 am to 4.30 p.m. and that he was paid in full for these hours. The records also show that the Complainant was paid “Early Morning Allowance” of 10 flat hours in addition to his basic pay in recognition of his early morning start at 6.00 a.m. each day. The Complainant’s submission that he was never paid for the hours he worked between 2.00 and 4.30 pm up until April 2002 is simply not borne out by the payroll records and is incorrect. It is clearly the case, therefore, that the justification he advances for the agreement he claims he entered into in March 2002 with S�L and DD does not stand up and there is no basis under the 2006 Agreement or otherwise for the additional payment that he claimed and received between 2002 and 2014.

Accordingly, the Court finds that the discontinuation of the payment in question, with effect from 8 August 2014, is permitted by section 5(5)(a)(i)(I) of the Act and does not constitute an unlawful deduction. The payment in question was not properly payable to the Complainant after 2 April 2002.

Determination

The Court finds that the Complainant’s appeal fails and the decision of the Rights Commissioner stands.

The Court so determines.

Signed on behalf of the Labour Court




18th July, 2016______________________
CCAlan Haugh
Deputy Chairman


NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.