ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001768

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

Date of Adjudication Hearing: 26/04/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant submits that his weekly rate of pay was determined on the basis of working arrangements agreed on a personal to holder basis pursuant to the suppression of the “Traffic” duty element of his role in December 2011. He was suspended with pay in accordance with the disciplinary procedure during an appeal of his dismissal in July 2014 but was not paid the premium payment arising from the aforementioned arrangement. These payments were specifically provided for and formed part of normal weekly earnings. The underlying implication of paid suspension in the circumstances described is that it must be non-prejudicial.

Respondent’s Submission and Presentation:

The respondent submits that the claimant was paid full basic pay in the relevant period (25^th of July to 31^st of July 2014) notwithstanding the fact that the appeal of his dismissal was subsequently withdrawn and his early retirement was facilitated from the 30^th of July 2014. The herein complaint is unusually late it being 19 months since the alleged infringement thereby breaching the rules of fair procedure. There is no facility for payment of premium where an employee does not work the actual hours other than in stated exceptional circumstances (noted). The claimant was paid Sunday premium in error for 27^th of July 2014 and 7^th of August 2014 without amendment. The respondent asserts that it has treated the complainant fairly in all the circumstances (payment during appeal despite the fact that it was subsequently withdrawn).

Decision and Recommendation:

The complainant is entitled to regard his personal to holder arrangement and the earnings deriving therefrom as his normal weekly earnings as they would be similarly regarded in the computation of any/all statutory entitlement. The submission in respect of the non-prejudicial aspect of “suspension with pay” in these circumstances is compelling and the fact that “regular rostered” premium pay is taken into account as it relates to the Ambulance service would suggest a somewhat ambiguous approach by the respondent.

I recommend that the complainant had an entitlement to his normal weekly earnings arising from his November 2011 personal to holder arrangement during the period of his suspension with pay under the disciplinary procedure. The respondent should therefore make good any underpayment arising.

Dated:   9^th September 2016