ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00012084
Parties:
| Complainant | Respondent |
Anonymised Parties | A manager | A Childcare Committee |
Representatives | Martin O'Rourke SIPTU | Declan Thomas IBEC |
Complaint(s):
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-00016098-001 | 01/12/2017 |
Date of Adjudication Hearing: 06/06/2018
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 13 of the Industrial Relations Acts 1969following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
On occasions in the past the complainant had outstanding untaken leave paid as a cash sum into a pension fund. The respondent has insisted this practice was not properly authorised and should cease. |
Summary of Complainant’s Case:
The complainant commenced employment with the respondent in 2003 and was appointed manager in 2008. At the same time, thee members of staff were made redundant resulting in an increased workload for the remaining staff including the complainant who had to work extensive additional hours to meet the requirements of the organisation. No overtime was payable and all additional hours were given as time off in lieu (Toil). The complainant completed a monthly work sheet outlining the hours worked which was signed off by a member of the Board of Management. She accumulated considerable hours but was unable to use them due to work commitments. She highlighted her workload at various management committee meetings and this was acknowledged by the board. As a means of alleviating the situation an agreement was secured in 2014 to place a maximum of 5 days of her Toil into a pension scheme. This agreed practice continued for 2015 and 2016 without issues and the payments to the pension company were authorised by both the Chairperson and one other Director. This facility has now been withdrawn. The complainant raised a formal grievance but this was not addressed. The position of the respondent was that the process of transferring leave into a pension scheme was not legal. |
Summary of Respondent’s Case:
The respondent asserts that the complainant does not have an entitlement either by agreement or by custom and practice that accrued annual leave and/or Toil be paid into employees’ pension funds. The respondent is not satisfied with the recording and accuracy of the minutes of the alleged decision of the Board to approve the payment. |
Findings and Conclusions:
It is clear that on at least three occasions the payment was made to the pension scheme with the knowledge of the appropriate board members. Whether or not this approval was properly recorded is therefore a moot point. Toil is provided for in the handbook and was signed off for the complainant by the Board representative. By signing off on the leave the respondent was acknowledging that the complainant was entitled to a benefit. Clearly the intention was that this should be time to be taken off by the employee. However, if the workload is such that it makes taking additional time off impossible then the normal solution would be to recruit additional assistance. If this is not desirable then the employee should be compensated in some other way. The payment of one week’s wages into a pension scheme, which amounts to less than 2% of the complainant’s annual salary, does not appear excessive. Linking it to Toil does not provide a long term dependable solution and I would recommend an increase in the weekly contracted working hours of the complainant by three quarters of an hour thereby reducing the accumulation of Toil. In such circumstances the respondent should pay the equivalent of one week’s pay to her pension fund annually. |
Recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the complaint.
I recommend an increase in the weekly contracted working hours of the complainant by three quarters of an hour. If this is agreed I further recommend that the respondent should pay the equivalent of one week’s pay to her pension fund annually. |
Dated: 19th September, 2018.
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Contribution to pension in lieu of time off |