Complainant

Respondent

Anonymised Parties

A Foreman of Works

A Local Authority

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-00019988-001

25/06/2018

The Worker commenced employment with the Employer, a local authority, in 1995. During his time with the Employer he held various positions until his appointment as Foreman of Works, in May 2007. He was dismissed by the Employer on 8th November 2017. He was paid a gross salary of €1,800 fortnightly. He lodged a complaint with the WRC on 25th June 2018. The Worker submits that he is owed €25,000 by the Employer, the Employer submits that this claim is without merit.

The Worker provided a detailed written submission.

The Worker submits that his employment was terminated by the Employer on 8th November 2017 following an eight-month suspension from employment, pending investigation. During the period of suspension, despite assurances that he would suffer ‘no loss of remuneration’, management withheld a number of elements of his remuneration which, he contends, in the circumstances he was reasonably entitled to expect. The Worker is seeking payment of €25,000 based on a reasonable and legitimate expectation in line with a commitment from management.

The Worker was suspended from his employment, pending investigation, from 22nd March 2017 until his dismissal on 8th November 2017. Upon the commencement of his suspension the Worker received correspondence from his employer advising that there would be ‘no loss of remuneration’ and that he would be suspended on ‘full pay’.   The minutes of the disciplinary hearing also confirm that the suspension was imposed ‘with no loss of remuneration’.

Despite this, the Worker submits that throughout his suspension, a number of elements of remuneration were withheld. Local discussions failed to resolve the dispute and the issue was referred to the WRC by SIPTU on the Worker’s behalf.

The Worker submits that the word ‘remuneration’ is generally understood to include ‘any consideration, whether in cash or in kind’, which the employee receives from his/her employer in respect of his/her employment. Definitions are contained in the Protection of Employees (Part-Time Work) Act, 2001, the Protection of Employees (Fixed Term Work) Act, 2003 and the Employment Equality Act, 1998. A similar definition is contained within the Payment of Wages Act, 1991, albeit in respect of ‘wages’ rather than ‘remuneration’. Thesedefinitions, although varying slightly, clearly indicate that ‘remuneration’ encompasses a much wider definition than, for example, ‘basic pay’. …

The Worker submits that he had an obligation to carry out a number of duties for the Employer onboth a regular and rostered basis. On Sundays, on one week in every four, he was required to carry out village cleaning duties in a number of villages for which he received four hours pay at double time plus one hour’ travel. Likewise, on every second Saturday (every Saturday during the Summer months) he was required to carry out general maintenance works in parks, dual carriageways, roundabouts etc. The Worker also had regular and rostered responsibilities to supervise maintenance works on an area approximately 70 times per year for which he was paid four hours pay at double time. This responsibility was often required to be undertaken following the Saturday and/or Sunday duties outlined above. On one week in every four the Worker was on-call for emergency events. If not called he received an allowance of €80.64 per week. If called he received the €80.64 allowance plus four hours at double time for each call out.

Despite being both regular and rostered, during the period of suspension the Worker received none of his payments in respect of the above.

According to the Worker, management consider all of the above to comprise ‘overtime payments’ and as overtime was not worked during the period of suspension they insist that no payment is due. This is to ignore the fact that the Worker had an obligation to carry out the duties on behalf of the Employer on a regular and rostered basis. In such circumstances the Worker contends that the definition of ‘remuneration’ encompasses such payments. One would reasonably expect HR management to be fully conversant with the definition of the word ‘remuneration’. The phrase appears not once, but twice, in written correspondence to the Worker. Had the Employer’s HR management intended to exclude certain elements of the Worker’s remuneration it is reasonable to assume they would have used another phrase which would have reflected that intention.

The Worker’s income for 2017 was considerably below that which he had received in the previous six years. The average earnings over that period was €79,700. By comparison, in 2017, the Worker received €52,168. The shortfall is entirely due to the non-payment, during his suspension, of the various payments outlined above.

The Worker submits that management took a full eight months to carry out the investigation during which time the Worker was suspended. Had the investigation been conducted more efficiently and over a shorter time the Worker’s loss would not have been so high. Therefore, the scale of, and responsibility for, those losses rests with management. The Worker should not be expected to bear the resultant enormous financial loss.  

The Worker submits that any definition of ‘remuneration’ must encompass payment in respect of duties which are both regular and rostered. The Worker was required to carry out those responsibilities, outlined above, on a regular and rostered basis. This takes them outside the ambit of basic overtime arrangements, which are normally neither guaranteed or are often optional, and places a clear and unambiguous responsibility on the Worker to perform same. Accordingly, he contends that, based both on the regular and rostered nature of the responsibilities and on the written assurances of his employer, the Worker had a legitimate expectation to payment of these amounts during his suspension from employment pending investigation.

The Employer provided a detailed written submission.

The Employer does not accept the claim being made. The Worker was suspended in March 2017 pending an investigation of an incident at work. This was, according to the Employer, in keeping with the Employer’s Disciplinary and Grievance Policy.

The Worker was suspended with pay for a period of 34 weeks up to the date of his dismissal in November 2017.

The Employer is aware that suspending an employee, even on full pay is a very serious measure. In this instance the decision to suspend was “precautionary” and to allow an investigation to be carried out. Therefore, the Worker was entitled to be paid his full normal pay.

During the period of suspension, the Employer submits that the Worker was paid a total gross amount of €42,746.18 which broke down as follows:

Basic salary; €35,390.91

Non-worked overtime; €4,747.17

Differentials; €2,300.30

Meals; €307.80

The Employer does not accept the Worker’s case that he should have been paid another €25,000.00 during the period of his suspension, for the following reasons:

He was paid the full amount of what he was entitled to receive, i.e. his normal pay.

Overtime payments are not considered part of normal pay.

Although the overtime being claimed maybe described as regular and rostered it is not mandatory, obligatory or contractual.

Overtime was done on a voluntary basis and staff were not contractually obliged to agree to any request to work overtime.

The Employer does not accept that overtime, which the person has the option of refusing, is mandatory.

Overtime must be worked to attract pay.

It is not sustainable to pay worked overtime to those who do the work which attracts such payments and also to others, in this case the Worker, who did not actually do the work.   The Employer would in effect be paying twice for the same work.

The overtime work in question was carried out by other staff on occasions in the past when the Worker was unavailable or on leave.

Worked overtime is not paid on annual or other leave. When the Worker was on annual leave he was not entitled to and was not paid worked overtime. A direct comparator for the Worker was examined and verified as also not receiving payment for worked overtime while on annual leave.

The Employer does not accept that the claim made by the Worker that the reference to “full remuneration or full pay” is inclusive of worked overtime.

The Employer submits that it has acted fairly and reasonably, followed proper procedures and paid the Worker his full normal pay when he was suspended.

The Employer submits that “full remuneration or full pay” is the normal pay the Worker was entitled to receive as an employee, i.e., that he should have been paid the same pay as he would accrue if he was on annual leave.

I have considered this matter carefully.

This is an industrial relations matter and I will deal with it as such.

The Worker in this case was paid what his Employer deemed to be “normal pay” while he was suspended.   This “normal pay” did not include overtime and the Employer is of the view that it is unsustainable to expect an employer to pay for overtime that was not worked.

The Union argue that their member was assured that he would suffer no loss of remuneration and that he would be on full pay while he was suspended, and as such he should get compensated for his loss of overtime.

I note that employees in this organisation are not paid overtime while on annual or other leave.   It would seem counter intuitive then that a worker on a disciplinary sanction should benefit more than say someone on their annual holidays. That being the case, in this instance, I agree with the Employer that suspension with pay should not include overtime which is not mandatory, obligatory or contractual.

However, I am conscious of the abnormally long duration of the suspension, almost eight months, and the impact this would have on an individual. Whatever the reasons for the delay in reaching a conclusion, eight months is too long to leave a worker hanging-on to find out their fate.

In the circumstances, I recommend the Employer pay the Worker €3,600 redress, for the time taken to complete the disciplinary process and the detrimental impact this delay had on the Worker.

I recommend the Employer pay redress to the Worker of €3,600.

Suspension with pay, overtime,