ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00000490

An Employee v. A County Council

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 02/02/2016

Location: Room 411, Lansdowne House, Lansdowne Road, Dublin 4

Workplace Relations Commission Adjudication Officer: Emile Daly

Summary of Facts

In 2011 the Respondent introduced a seven day shift system for workers. The purpose of this was to reduce the amount of over-time work being done by workers and to provide a 24 hour seven day service in the Cleansing Section (i.e. the section of the County Council that has responsibility for rubbish collection)

In order to encourage the employees to agree to these changes, a compensation package was offered to the employees affected by the changes. The compensation package applied to two categories of worker, who did over-time work. Those who had no history of doing over-time, did not qualify for the compensation.

The compensation was agreed as follows:

Those that were classified as casual un-rostered workers, received a payment of €1200.00.

Those that were classified as regular rostered workers, received a payment of 1.5 X their annual loss of overtime.

After some discussion and some amendments were made to the package, an agreement was reached between the Union and Management and the agreement was signed on 15 July 2011.

Complainant’s Submission and Presentation:

1. The Union stated that both before and after the signing of the agreement that it disagreed with how the Complainant had been classified (as a casual un-rostered worker and not a Regular Rostered worker.) While the Union was not prepared to hold up the implementation of the agreement, it made clear at the time of signing the agreement, via representation by JB (shop steward) that they would seek remedial action on his behalf. The right to do so was acknowledged by the Respondent on page 8 of a discussion document entitled “Interest Based Bargaining Process: County Council Cleansing Section 2009-2010” which recorded the following minutes of a discussion around claims for loss of earnings arising from the implementation of the agreement.

“As in previous meeting, staff representatives indicated that they wished there to be a process to deal with loss of earnings prior to or at the implementation of the proposals.

Council representatives indicated that it would not be possible to do so, but that this did not preclude staff members from making a claim for loss of earnings in line with the normal procedures in the future.”

2. The Union submitted that this right to pursue a complaint was not prevented by signing the agreement, because it was agreed that the right to bring a complaint arising from the implementation of the agreement was still in place.

3. The Complainant gave evidence that he worked over-time on a regular basis and that there was no explicable basis as to how her was treated as a casual un-rostered worker.

4. He stated that his overtime hours were one weekend in two. He worked every second Saturday and Sunday from 8am until 4.30pm.

5. He stated that all the other workers who worked alongside him did so on a regular basis. Some did one weekend in two, like him, or some did one weekend in three. All of these workers were classified as regular – rostered workers and were compensated accordingly.

6. He stated that the only difference between him and those workers who were treated as regular rostered workers, was that he was their supervisor.

7. He stated that this issue of an error in his classification was raised with the Respondent before and since the Management-Union agreement in July 2011. At the time of the agreement JB specifically raised the Complainant with a senior executive of the Respondent and told him that the Union would bring a separate Industrial Relations claim on behalf of the Complainant.

8. SIPTU submitted that the Complainant was unique in that he was the only worker who did regular hours, who was not compensated accordingly.

Respondent’s Submission and Presentation:

1. Mr. A, on behalf of the Respondent, stated that the agreement in 2011 was binding and the Complainant accepted that he was categorised as a casual un-rostered worker.

2. He received compensation accordingly, which was €1200.00.

3. He cannot retrospectively go back to amend his position

4. The agreement was reached after two ballots and it was not accepted that the agreement which included how the workers were classified and compensated, could be reviewed.

5. Mr. A did not dispute that representations may have been made to the Respondent at the time of the signing of the agreement in July 2011, as he was not in his current position, at that time.

6. Mr. A stated that another employee, EC, who retired his post before the agreement was reached, was not treated as a regular rostered worker for the purpose of his pension. EC was a direct comparator, being a supervisor holding exactly the same role, that of supervisor, as the Complainant.

Findings and Recommendation

I find that the complaint is well founded. I recommend that the Respondent pay to the Complainant the sum of €3750.00 as compensation for failing to categorise him as a regular rostered worker under the agreement

Reasons

1. No evidence has been provided to counter the evidence given by the Complainant that the overtime work that he did prior to 2011, was both regular and was rostered

2. The fact that the comparator of EC was not treated as a regular rostered worker, on his retirement, is not evidence that he was not one.

3. It was accepted that those workers who were categorised as regular and rostered were those who regularly and in accordance with a roster, worked, on a weekly, fortnightly or on a three week basis.

4. The Complainant worked, in accordance with a roster, on a regular basis. In his case, it was every second weekend

5. No evidence has been given to explain why Complainant was categorised as a non-regular rostered worker, when all those who worked alongside him, on regular weekends, were categorised as regular rostered workers.

6. I accept that the pre- agreement discussions, which are minuted, are evidence of the fact that the Respondent accepted that complaints about loss of earnings, would be permitted to be made through industrial relations channels, after the agreement was signed.

7. I do not accept that the signing by the Union of the agreement in 2011 estops his right to bring this complaint. This must especially be the case in light of the un-countered evidence that specific notice was brought to the Respondent about the unique position of the Complainant, namely that he had been wrongly categorised and no reason had been given for this.

Dated:   25^th May 2016