Complainant

Respondent

Anonymised Parties

A Driver

A County Council

Representatives

Niall Philips SIPTU

 LGMA

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-00015210-001

23/10/2017

The Complainant has worked for over 20 years with the Respondent as a driver. This complaint concerns whether he is entitled to be compensated for a loss of a mileage allowance that other drivers were red circled for on foot of an agreement in 2009.

The Complainant commenced working as a driver for the Respondent County Council in March 1980 and has worked continuously for them since then.

Prior to 2000 the Complainant received a mileage allowance for the distance that he travelled in his car from his home to the depot each morning and from the depot to his home each evening.

In 2000 the Complainant took on emergency night work duties and for this it was required that he take his lorry home with him each evening. As he was no longer using his own car to travel to and from work, he no longer received the mileage allowance, which stopped. Instead he received a premium overtime payment for work done during the night time. This was essential work during the winter time as road gritting was required.

Due to ill health in 2016 the Complainant informed the Respondent that he no longer wished to be considered for winter time night work. However, he did not explain the reason for doing so to the Respondent. As night work was not compulsory, this was accepted by the Respondent and there was no difficulty in locating other drivers who were happy to do the over- time work that the Complainant was now declining.

The Complainant now reverted to using his own car to get to and from work and as such he expected that he would be allowed the mileage allowance that he had received before 2000. However, he was told that he would not be receiving this allowance. The Respondent informed him that in 2009 the payment of a mileage allowance stopped and only those drivers who in 2009 were still receiving the allowance and bar a red circling arrangement they all would have lost the allowance under recession related cuts. The reasoning of the Respondent was when the red circling exception was made only those who were still receiving the allowance in 2009, got the benefit of being red circled. As the Complainant in 2009 was still receiving the night time premium pay and was still driving the Respondent’s lorry, he was not entitled to the mileage allowance.

The Complainant submits that he was doing the night time work to suit the needs of the Respondent. If he had never done the night time work, he would have always received the mileage allowance and he would have been red circled like the other employees. It is unfair that because he agreed to do these anti-social hours of work, through the night, work that was essential to fulfilling the Respondent’s duties to maintain safe roads during winter nights, that when through ill health he steps down from this role - due to ill health – that he should be treated less well than those employees who never did the anti-social hours.

The Complainant chose to do the night time shift in 2000. He did so because as a result he received a premium payment i.e. it suited him to take the position.

Mileage allowance was discontinued when the public service funding was reduced in the context of the national recession.

The agreement reached in 2009 was that certain specified drivers, who had used their own cars and who were up until then in receipt of the mileage allowance, would be red circled. The agreement did not extend to drivers who may in the past have received the allowance, not could it have because this would have been too wide a cohort of employees. Also, it made no sense to extend the red circled cohort (to include those who in the past had received the allowance) because the purpose of the agreement was to compensate a small number of effected employees who otherwise would lose out on an allowance which they currently received.

The Complainant did not seek for the red circling arrangement to apply to him in 2009 because he knew it would not have.

New recruits (ie post 2009) did not receive the allowance.

The Complainant cannot pursue more lucrative terms and conditions by doing night time work and then complain that he is not being treated the same as his colleagues who never received the night time premium.

His decision to return to day work only in the winter months does not mean that he should gain the benefit of being red circled, when he was not party to the red circling agreement that was entered into.

The Complainant did not inform the Respondent that he was sick or that it was due to ill health that he stepped back from the night time work in winter time.

The Respondent’s submission is based on the premise that it suited the Complainant to change where he had worked for 20 years and he had received a mileage allowance to do night time work in order that he would receive a lucrative night time allowance.

And yet it was also in the interests of the Respondent that he made himself available to do this work. The reason that he was paid the premium payment for night time work was because it is the responsibility of the Respondent to grit the roads during the winter months, in order to make the roads safe for driving. This service was and is an essential public service. This must be particularly the case in northern counties where road accidents, due to inclement weather, are more likely to occur. The fact that the Complainant was paid an extra premium for night time work was because of the anti-social nature of such work. He was called upon in the middle of the night to grit roads and attend to other emergencies. To suggest that this arrangement was a perk is probably not accurate.

He was performing essential work for the Respondent during anti-social hours in winter conditions and this work was appropriately rewarded.

When he could no longer perform this work, due to ill health he stepped back into the post that he did however he is now being paid less than all his colleagues who had not taken on the anti-social work. Had he not taken up the work when he was asked to do so, he would have been red circled and he would now be in receipt of the allowance.

The loss of this payment from 2016 to his retirement is €7000.00. As he did not raise this matter with the respondent at any stage from 2009 -2016 is significant. Also, he should have explained that the reason he was stepping back from the winter work was due to ill health, which he failed to do.

I find this complaint to be well founded and recommend that the Respondent pay to the Complainant the sum of €3500.00 to compensate him for the loss of an allowance until the date of his retirement. I reduce the full loss to reflect the fact that the complaint was not made until 2016 and because of his failure to disclose the reason behind his decision to no longer do night time work. Ill health is a valid reason to step back from doing overtime work when such overtime work is at the discretion of the employee to do or not do, however if he had provided the explanation management would have been in the position to understand the requirement of the step back and may have taken a different approach to this complaint.

AWARD: €3500.00