FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : BROTHERS OF CHARITY SERVICES (REPRESENTED BY IBEC MIDWEST) - AND - A WORKER (REPRESENTED BY WALLACE REIDY & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No: ADJ-00006384 CA-00008715-001
BACKGROUND:
2. This dispute concerns the Worker's claim that the Employer has failed to apply the correct rate of pay for non-contracted hours which resulted in a significant reduction in the rate of pay. This dispute was referred to the Adjudication Officer for investigation and recommendation. On the 21st July, 2017, the Adjudication Officer issued the following Recommendation:-
The Dispute is in relation to the understanding of non-contracted hours and payments for same. The employee contends due to the employers unrealistic work load she had to work extra hours. The employer gave her 4.5 hours per fortnight extra hours. Based on the evidence presented it is reasonable to expect the employee to get her work done in these hours.
The Adjudicator finds that the complainant received pay for the hours worked and that the Respondent organisation have approved time inlieu policy in place for additional hours therefore her claim is not upheld.
On the 29 August, 2017, the Employee appealed the Adjudication Officer's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 31 January, 2018.
DECISION:
Officer ADJ-00006384, CA-00008715-001 under the Industrial Relations Act 1969. The Claimant has been employed as a Social Care Worker with the Respondent since 1st October 2000.
Due to the Claimant’s workload, management increased her contracted hours of work from 73.5 hours to 78 hours per fortnight from 19th April 2015 until November 2016. For hours worked in addition to these hours she was entitled to time off in lieu (TOIL).
The Claimant’s claim concerns her assertion that she was entitled to TOIL in addition to her contracted 78 hours per fortnight in the period from 19th April 2015 until November 2016. She claims that as she did not have TOIL, she should now be compensated for the loss which she quantified at €3,181.15. The Claimant referred her claim to the Workplace Relations Commission on 12th December 2016.
The Adjudication Officer rejected her claim and held that she was not entitled to both payment and TOIL for the extra hours she worked in that period.
The Claimant submitted that the employer ceased the practice of TOIL and therefore she sought compensation for extra hours worked. She maintained that it was not possible for her to complete her core responsibilities within her contracted hours, as management failed to provide her with the necessary support and failed to manage ongoing staffing issues. She claimed that these extra 4.5 hours (from 73.5 to 78 hours) were to cover parts of the sleepover hours.
Management stated that when the change came about, the Claimant’s rostered hours remained the same however, she was paid for an additional 4.5 hours which she was required to self-manage and anytime worked over the 78 hours per fortnight remained eligible for accrual of TOIL. Management said that she had the freedom to work these additional hours whenever she chose and they were devised to allow her to complete tasks such as completing Person Centred Plans (PCP’s). This arrangement ceased at the Claimant’s request and her contracted hours reverted to 73.5 hours per fortnight in November 2016. Management stated that it was never approved that she would use part of her sleepover to complete the tasks, all hours worked over contracted hours were subject to approval by management and she was required to supply time sheets to indicate the work carried out during the additional hours. Sleepover hours are paid at an agreed rate of pay. Management stated that these arrangements were consistent with Social Care Workers throughout the organisation.
Management stated that it had been confirmed to the Claimant that there was no expectation that she should work beyond her contracted hours, and submitted that her workload was consistent with the workload of Social Care Workers throughout the organisation.
Having considered the submissions of both parties it is clear to the Court that there was confusion between what was expected of the Claimant and what the protocols around recording hours were. However, the Court is satisfied that it was made clear to the Claimant that there was no expectation on her to work in excess of her contracted hours and they were not to be taken from her sleepover hours. Management made it clear that it was only in exceptional circumstances that sleepover hours were to be interrupted or where prior approval had been granted. A letter from management to the Claimant dated 24thNovember 2015 records the fact that the Claimant in a telephone conversation on 9thNovember 2015 accepted that the extra hours would support her to finish her normal duties by 11.00pm.
Taking all the circumstances into account the Court cannot find in favour of the Claimant’s claim. Therefore, the Court upholds the Adjudication Officer’s Decision and rejects the appeal.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
JD______________________
26 February 2018Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.