Complainant

Respondent

Anonymised Parties

A Store Person/Driver

A Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00004073-001

26/04/2016

The respondent employs the complainant as a store-person/driver. He has been employed by the respondent since 2003. The herein dispute concerns entitlement or otherwise to compensation for loss of overtime. The parties made written and oral submission to the hearing.

The complainant submits that following the non-replacement of two former colleagues (there was a reduction from four to two staff in 2010) and a consequent review of operation the respondent required him to carry out additional duties. These additional duties could not be performed during his standard weekly hours and therefore he was required to work an additional ten hours per week. The arrangement continued for a period of approximately two years. The same applied to his colleague.                                                                                                                                                            The arrangement concluded in September 2012 when a new member of staff was employed. She took over the additional duties previously performed by the complainant. He sought compensation for loss of overtime which was refused and the matter became the subject of a local grievance concluding unsuccessfully from his perspective in February 2015. The respondent outlined the reasons for the refusal by letter and referred inter alia to the amount of overtime fluctuating, the fact that overtime had not been permanently removed, staff rosters are entered into the respondent’s system, it was voluntary, the reduction in earnings came about arising from revised authorisation levels and consequent budgetary controls. The respondent relied upon precedents set by the Labour Court.                                                                                                                                             His contract provides that he would deliver any changes required by the respondent to improve day to day operations. He was required to take on the additional duties by the respondent to fill the gap left by his colleagues. The overtime in this sense was not optional. He was left with no option to the extent that he would have been open to an accusation of failure to deliver on a key aspect of his job specification. A roster is a predetermined working pattern and in this case, it refers to a pattern which allowed for a 10-hour overtime period in addition to his normal working hours. It was agreed with local management which accepts that he was working overtime on a continuous basis of 10 hours per week for the previous two years. It is accepted that he did do overtime additional to this requirement but this was on an ad hoc basis which was always the case and remains so today.

The respondent accepts that the complainant has sustained a reduction in overtime earning but submits that the overtime lost is neither regular, rostered or compulsory. The respondent asserts that it is not possible to compensate as it would have precedential affect. The changes in relation to the overtime arise from improved budgetary management. The complainant and his colleague were requested to cover the vacancy left by their departing colleagues. The respondent was bound by the recruitment moratorium at that time. It is understood that overtime covering vacancy or short gaps is not to be considered as regular and rostered overtime. The complainant and his colleague received an acting allowance for performance of duties of a higher grade. Overtime itself has not been permanently removed and the complainant continues to work some overtime. Other staff has worked for longer periods of time than the time frame herein in not dissimilar circumstances and have not been compensated. He was not under instruction to do overtime nor contractually required to do it. The overtime payment was not pensionable under Haddington Road clause 2.27.

Noting the assertion of the complainant that in arriving at the relevant agreement with the respondent it was put to him in a coercive way, viz. to keep the stores open I am not convinced that he was contractually obliged as submitted. I am of the view that he had a choice in the matter and that he could have exercised that choice and that it is speculative to view the matter otherwise.

I accept the submission of the respondent as it relates to the vacancy although the time frame is unusual. The moratorium is justification in this regard. I must conclude therefore that at the time the complainant entered the agreement he will have done so in knowledge of the fact that there may well have been eternal pressures on the local system to the extent that the respondent may have considered alternative location of the stores which would affect him, that a vacancy had been created and that it was not possible at that time to fill it and that it was likely to be filled as soon as possible. He would also have been aware that it was uneconomic for the respondent to continue with the arrangement ad infinitum. Finally, the agreement to pay an acting allowance seals the issue.

In these circumstances I must find that the overtime in question was not regular in the sense that is commonly accepted in claims of compensatory loss.

I recommend that the complainant accept the determination of the stage 3 grievance in this matter.