Complainant

Respondent

Anonymised Parties

A Council Worker

A County Council

Representatives

Con Casey SIPTU

Personnel Representative 

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-00030959-001

17/09/2019

This claim centres on the circumstances surrounding the payment of a specific allowance. the claimant has now retired but continues to hold a grievance that he was denied payment of the allowance.

The Employer, a Public Authority have no authority to concede payment of the allowance as they have outlined that the claimant did not satisfy the criteria for payment of same.

Both sides were represented, and both sides made helpful submissions at the hearing. The claimant retired in April 2019 and this case comes before the WRC under the amendment to the Industrial Relations Act 1990.

The Claimant had worked for the Employer for almost 30 years as a mobile Council worker, his most recent base was a historical home for the payment of a specific allowance linked to a certain aspect of Council work. This allowance was colloquially referred to as a “site allowance “but, was incorporated in pay as an additional hour’s payment.

The Claimant had made every effort to secure the payment of this allowance during his employment and stood to lose the value in superannuation of this €2,028.00 payment per annum as he was unable to incorporate it in a “loss of earnings “matrix. the Union had met with the Employer in January 2019 but had not resolved the claim.

The Union argued that precedent existed in LCR 20357 on elimination of embedded overtime, 2012 where a payment reflected in overtime was in fact an allowance paid for certain duties.

By way of background, the Union submitted that the allowance at the centre of the case was 25 years in being an was exclusive to the site where the claimant was based. The Union contested the Employers interpretation of the allowance as a “driving allowance “and contended that it had been paid to non-drivers in the past, name supplied at hearing of a student who previously received the payment. When the parties met in January 2019, the Employer confirmed that the allowance had been subjected to FEMPI pay cuts in 2010. The Claimant is a not a qualified driver .

The Union submitted that the complainant had fulfilled his duties for the Council and was the sole member unjustly excluded from payment of this allowance. The Union concluded by submitting that the claimant was having difficulty adjusting to retirement while this matter remained unresolved and asked for a positive outcome.

The Union confirmed that the allowance was not governed by a collective agreement, but it would mean a lot to the claimant to receive a positive outcome. The Union suggested a mediated process at hearing.

The Employer outlined the claimants extensive service record with the Public Authority which culminated in his arrival by transfer to the base location referred to above in June 2009. He had been made permanent during the preceding year.

The Claimant commenced his preparation for retirement in 2014 by requesting a pension forecast. This was providing to him. The claimant had planned his retirement date for April 19 ,2019 and received pension based on 12.6 years’ service with a calculation of overtime as best 3 in 10 years. He no longer worked for the Employer. The Employer confirmed that a claim for “minding equipment “had been raised by the Union on behalf of the Claimant in 2018and the claim was expanded to be incorporated into pension.

The Employer rejected the claim as there was no basis to the claim. There was no such titled allowance. They also disputed the named precedent relied on by the Union .

The underlying nature of the claim was revealed during a meeting of the parties in January 2019 and the Employer understood that the claimant was claiming “available for driving allowance “and not a care and responsibility for tool allowance.

There was a sensitivity about this allowance as payment was based on the following strict criteria:

1.       Possession of Full Driving licence and being available always to drive employer vans.

2.       Care of Vans, Stock Maintenance and preparedness for emergency work

This was the stated criteria and the claimant was unable to avail of the allowance as he had not attained the full criteria. The Employer had no choice but to refuse to pay the allowance and was unable to incorporate the allowance into the calculations of pension.

The Employer introduced the Area Manager who recounted have a focussed meeting in the Staff Canteen between the years 2012-2015. The purpose of the allowance was set out in an unequivocal fashion and the message was not universally welcomed.

The Employer submitted that the allowance was not accompanied by an explanatory document but all employees on the re circled site were aware of the criteria and the Employer was bound by the strict criteria.

The Employer took some time during the hearing to scope out the potential, if any to explore any opportunity for a same day resolution. There was none.

I have given some thought to both parties stated oral and written positions. This claim comes to the WRC in the early days of the claimant’s retirement. I addressed the parties that I believed that the matter should have been progressed during the life time of the employment rather than a latter-day claim. I appreciate that there were mitigating circumstances why this was not possible for the Union and I accept those reasons. This claim comes under the six-month window of time permitted

Time limit in relation to trade dispute where retired worker is party to dispute

45. The Act of 1990 is amended by the insertion of the following section after section 26:

“26A. (1) Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless—

(a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or

(b) the dispute was referred to an adjudication officer or the Court within the period referred to in paragraph (a).

(2) Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.

(3) The Commission or the Court shall not investigate a trade dispute to which a worker referred to in subsection (1) is a party where the dispute is subject to investigation by the Pensions Ombudsman.”.

I am satisfied that the claim was referred for Adjudication on 17 September 2019 within the time allowed in Section 1(a) above and I have jurisdiction to hear the case.

I found this to be a very unusual case. Both parties were very focussed on the merits of their respective arguments and both parties were well represented.

It took me some time to grasp the nature of the allowance as it was not cross referenced in documentation and the criteria for payment was communicated orally. I accept that a specific allowance was payable to a small cohort of workers allocated to the base location cited in the case. This allowance was administered through overtime on a weekly measurement.

I am grateful to the Area Manager for being clear on the focus and purpose of the allowance. The Union were clearly attempting to send the claimant into retirement equipped with his rightful superannuation. I understand both parties. The Employer submitted that if the claim was accepted at hearing, the claimant would be faced with a large repayment bill. The Employer followed this by a declaration that the claimant was simply not eligible, and no exceptions could be made.

I have reflected on both of the stated positions and I have identified that the impasse in the claim is proving a defined barrier to the claimant embracing his retirement , he was keen to have the case assessed independently and wanted it known that he had fully committed to his work at the Council, but was not in a position to satisfy one aspect of the criteria and he was fully participative in the remainder of the tasks .He believed that he had been unfairly treated and wanted to move forward . The Employers hands were tied, and they had no flexibility in conceding any aspect of the case.

I found that the claimant and his former employer made very dignified addresses to the hearing . The situation was a stalemate. I asked the parties if they could examine the claim through the positives of the claimant’s actual participation rather than what was outside his reach?, but this did not modify the impasse.

I have found some merit in this Dispute on two counts.

1. The claimant is currently impeded in enjoying his earned retirement as he believes that he was unfairly treated. This is not in his long-term interest or that of the employer

2 The Claimant was participant in all other aspects of the criteria bar the “actual driving “The Employer contended that the claimant excelled in outdoor work, but the claimant was present in the mobile vans and was in the minority regarding payment.

I was struck by the lack of a cross reference document or collective agreement covering this allowance. This created an ambiguity which caused the claimant to lose out. I believe that the most responsible recommendation I can make here is to identify the claimant as a strictly stand alone and red circled candidate, from which no precedent can evolve.

I have found some merit in this Dispute.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I have found merit in this Dispute. I recommend that the Employer frames the criteria for this allowance as an addendum to all affected employees’ contracts going forward. This is suggested to copper fasten a universal understanding of the parameters of the allowance and to negate the basis for a repetition of the circumstances of this case.

I also recommend that the Employer pays the complainant €1,500 in compensation for the missed opportunity to access an aspect of the allowance during his working life at the approved base location. This recommendation is a stand-alone recommendation and cannot be identified as a precedent under any circumstances.

Issue unresolved on retirement