Worker

Employer

Anonymised Parties

A Caretaker

A Local Authority

Representatives

SIPTU

Local Government Management Agency (LGMA)

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00024397-001

20/12/2018

The Worker has been employed in the position of Caretaker since January, 2015 and has responsibility for a number of water treatment plants within the Employer’s local authority area. This dispute relates to a claim by the Worker that the Employer has unilaterally withdrawn regular and rostered overtime resulting in losses of earnings without any compensation. The Employer disputes the claim and contends that any overtime worked by the Worker was subject to prior approval which was stated in his contract of employment and correspondence from the local authority. The Employer contends that there was no approval for the Worker to work the overtime claimed yet he continued to do so, and the local authority has attempted on numerous occasions to stop him from working unapproved overtime. The Employer further contends that the overtime was not regular, rostered, longstanding or compulsory and therefore, there is no basis for compensation for the loss of this ad hoc and unapproved overtime.

The following arguments were made on behalf of the Worker in relation to this dispute:

·         When the Worker commenced his position in January, 2015, overtime had been part and parcel of the position for over a decade. The Worker spent over five weeks being trained by the previous incumbent of the position and he was instructed to carry out his job as it had been done theretofore.

·         The long-established overtime that was required for the weekends was 8 am to 1 pm on Saturday and Sunday. Management raised the issue of overtime with all Caretakers employed by the local authority in July, 2016 which was a year and a half after the Worker was doing this overtime. The overtime was part and parcel of the position taken over by the Worker and was required in addition to core hours to ensure that the water supply complied with the required standards in an efficient and effective manner with all the necessary checks, monitoring measures and records in place.

·         The Employer had to make changes to reduce overtime and included in these changes was that of reducing the site visits to the water treatment plants from daily to three times per week. If the overtime was not required there would be no need to make any changes.

·         The Worker did not agree with the changes and sent an e-mail to the Employer on 27 April, 2017 explicitly explaining that the new system was compromising the quality and recording systems which had the potential to result in serious problems. After sending this e-mail the Worker was told that the decision was made, and he was to comply with the instructions. The Worker believes that the systems and water quality were compromised.

·         Management’s response that the Worker was not instructed or required to work overtime is not credible.

·         When an inspection was conducted by Irish Water, the Inspector expressed dissatisfaction at the fact that the water treatment plants were not being visited at weekends and recommended that the visits recommence. This compounds the fact that the visits are considered necessary to ensure the delivery of water to the required standards. The Inspector only conducted an inspection of one of the three plants which fall under the Worker’s remit and did not inspect the other two plants, both of which are operating with all of the expected checks being conducted.

·         Since early December, 2018, the Worker has had to recommence doing the appropriate checks at one of the plants and works Saturday and Sunday until 11:30 am.

·         The Worker is still of the view that the checks need to recommence in the other two plants and this will necessitate him working until 1 pm on Saturday and Sunday.

·         Management have taken the decision to prioritise the reduction of overtime costs over best practice in the delivery of safe water.

·         Management’s decision to unilaterally change the job requirements has resulted in the integrity of the systems being compromised and consequently a recommendation to recommence checks in one of the plants was made by the Irish Water Inspector. The changes implemented by Management have resulted in loss of earnings for the Worker from 1 April, 2017 to 31 March, 2018 in the amount of €10,866.57 for which he should be compensated.

·         The weekend overtime hours are required to ensure the quality of the water and the integrity of the systems and as such the Worker’s hours should be restored to ensure that weekend checks recommence at all three plants.

The following arguments were made on behalf of the Employer in response to this dispute:

·         The Worker was employed by the local authority in May, 2015 on a temporary Caretaker appointment and took up a permanent Caretaker position on 2 October, 2017.

·         As is usual with the grade of Caretaker within both employment contracts it was stipulated that he would be required to work a number of hours on a Saturday and Sunday. Similarly, as is applicable to all grades, prior approval was required should he be required to work additional hours.

·         The Employer wrote to all Water Caretakers (included the Worker) on 19 July, 2016 in relation to overtime and the requirement that “Overtime will be paid only when there is prior agreement with line manager unless in an emergency. Caretakers will be required to operate within the terms and conditions of their contracts in relation to weekend working and also the flexibility contained in their contract in regard to hours outside core working hours”.

·         This letter was followed up on 25 July, 2016 with a letter to the Worker stating “with effect from 1 September, 2016, the Council is requiring you to adhere to the terms of your contract … Please note that this letter should be read together with our letter of the 19 July, 2016”. This letter sent directly to the Worker reinforced the previous letter and the stipulation for prior agreement in relation to working overtime.

·         The Employer wrote to the Worker on 2 December, 2016 and 30 March, 2017 to reaffirm the terms of his contract of employment and the requirement for approval in relation to overtime and that he was not permitted to work overtime unless it was of an emergency nature.

·         Despite the fact that the Worker was not required to work overtime and was told not to do so without prior approval, he took it upon himself to work the overtime hours that his predecessor had worked. These hours were not regular and certainly not rostered. Nor were they approved.

·         The Worker however continued to submit overtime on his time sheets which was then submitted to payroll section for payment. It is accepted as a matter of fact the Worker’s wages included unauthorised/unapproved overtime, which continued to be paid until eventually he was provided with specific instructions in relation to his working week/hours.    

·         The Labour Court has consistently used a relatively narrow and precise definition as to what constitutes regular and rostered overtime and that all of the following elements must be present in order to satisfy a claim, namely the overtime must be regular, rostered, long standing and compulsory. The Employer relied upon the following Labour Court recommendations in support pf its position, namely: LCR19994, LCR19995, LCR201706 and AD13111.

·         The overtime worked by the Worker was not contractual or mandatory and the Employer consistently instructed him to stop working this without prior authorisation. The Worker was not obliged to work the overtime and therefore it cannot be held that compensation is payable.

I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.

The Worker contends that overtime is an essential and established part of his role as a Caretaker and that the Employer unilaterally decided to withdraw this overtime in July, 2016. The Worker contends that it has been necessary for him to continue working overtime on a Saturday and Sunday in order to fully discharge the core duties associated with his position and that he is entitled to compensation for the additional/overtime hours that he has worked during the period from March, 2017 to March, 2019.

The Employer disputes the claim and contends that any overtime worked by the Worker is subject to prior approval which was stated in his contract of employment. The Employer contends that there was no approval for the Worker to work the overtime claimed yet he continued to do so, and the local authority has attempted on numerous occasions to stop him from working unapproved overtime. The Employer further contends that the overtime was not regular, rostered, longstanding or compulsory, and therefore, there is no basis for compensation for the loss of this ad hoc and unapproved overtime.

Therefore, the core issue in dispute between the parties relates to the question as to whether or not the Worker is entitled to be paid compensation for overtime in respect of additional hours worked on a Saturday and Sunday outside of his core hours which he claims it had been necessary to work in order to fully discharge his duties as a Caretaker.

In considering this issue, I note that the Worker commenced employment as a Caretaker on a temporary contract in 2015 and was subsequently appointed to a permanent position on 2 October, 2017. It is clear from the respective contracts of employment provided to the Worker provided that he was required to work 39 hours per week which included working two hours on both Saturday and Sunday. It is also stated in his contract that “Any additional attendance/visits outside of the core hours must have the prior approval of your Line Manager, unless in an emergency”.

It would appear that the previous incumbent of the Worker’s position had worked additional hours outside of the stipulated core contractual hours on a Saturday and Sunday. The Worker continued this practice after his appointment to the position on a temporary contract in May, 2015 and was paid overtime for the additional hours worked. This situation continued until the Employer issued a direction to all of the Water and Sewage Caretakers within the local authority on 19 July, 2016 to confirm that overtime would only be paid when there was prior agreement of their Line Manger.

I am satisfied that the Employer subsequently engaged with the Worker on a number of occasions in 2016 and 2017 in relation to the issue of working additional hours outside of his core hours on a Saturday and Sunday in order to reaffirm the terms of his contract of employment and its position regarding the requirement for the approval of his Line Manager to work overtime. However, notwithstanding the direction given by the Employer on 19 July, 2016 and the subsequent instructions, the Worker continued to work the additional hours by way of overtime on a Saturday and Sunday.

In considering this matter, I note that the Labour Court has consistently held (see for example LCR201706 and AD1547) that “An established distinguishing feature between regular and rostered overtime and ad hoc overtime is that the former is mandatory or contractual whereas the latter is voluntary. Where overtime is mandatory or contractual it becomes, in effect, part of a workers normal working hours and should be compensated for if discontinued. Where overtime is not mandatory it is voluntary to both parties, in the sense that the employee is not obliged to work the overtime and the employer is not obliged to provide it. The Court has consistently held that in such cases compensation is not payable.”

In the circumstances, I find that the additional hours worked by the Worker on a Saturday and Sunday were not authorised, mandatory or contractual. I find that at all times relevant to this claim the overtime was voluntarily undertaken by the Worker and in disregard of the specific instructions of management not to work overtime. Accordingly, I cannot see any basis upon which I could recommend concession of his claim for compensation in relation to the additional hours worked outside of his contractual core hours.

However, I have also taken note of the Worker’s contention that the reason why he worked the additional hours on a Saturday and Sunday was due to his heavy workload and that it was not possible for him to perform all of the necessary tasks to fully discharge his duties as a Caretaker during core hours. Having regard to the submissions presented by the parties, I have no reason to question the bona fides of the Worker on this matter and I note that it was not in dispute that he is a very diligent and conscientious worker.

Having regard to the foregoing, I recommend that the Employer should carry out an independent job evaluation exercise in relation to the Worker’s position as Caretaker with a view to establishing the feasibility or otherwise of conducting all of the tasks associated with this position within the core hours currently provided for in his contract of employment. I also recommend that the conclusions of this job evaluation exercise should be used to inform the question as to whether or not there is a requirement for overtime in addition to the contractual core hours in order to discharge the full ambit of duties which are currently associated with this position.  

I do not recommend in favour of the concession of the Worker’s claim for compensation in relation to the additional hours/overtime worked outside of his contractual core hours.

I recommend that the Employer should carry out an independent job evaluation exercise in relation to the Worker’s position as Caretaker with a view to establishing the feasibility or otherwise of conducting all of the of the tasks currently associated with this position within the core hours as provided for in his contract of employment. I also recommend that the conclusions of this job evaluation exercise should be used to inform the question as to whether or not there is a requirement for overtime in addition to the contractual core hours in order to discharge the full ambit of duties which are currently associated with this position.  

Industrial Relations Act, 1969 – Section 13(9) – Trade Dispute – Overtime Allowance – Compensation sought by Worker