FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : CARLOW COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No ADJ-00018921.
BACKGROUND:
2. This case concerns a dispute by the Claimant concerning compensation for the loss of overtime.
This matter was referred to an Adjudication Officer for investigation and Recommendation. On the 16 April 2019 the Adjudication Officer issued the following Recommendation:-
“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.”
The Claimant appealed the Adjudication Officer’s Recommendation to the Labour Court on the 20 May 2019 in accordance with Section 13(9) of the Industrial Relations Act, 1969.
A Labour Court hearing took place on the 19 July 2019. The following is the Decision of the Court.
DECISION:
The Court has given very careful consideration to the written and oral submissions of the parties.
The matter before the Court involves a claim for compensation for the loss of overtime which ceased in April 2017 on foot of an instruction from management. There is no dispute that the overtime ceased at that time.
It is common case that the Appellant took over a role, initially on an acting up basis but ultimately on a permanent basis, from another caretaker in January 2015. It is also common case that the Appellant was expected to carry out the same duties as the previous incumbent albeit the Respondent could not be certain that those duties were not adjusted by management in January 2015.
It is also common case that the duties involved in the post required the previous incumbent to attend each week from 8.00am to 1.00pm on Saturdays and Sundays. The hours from 10.00am to 1.00pm on both days was overtime.
It is also common case that the Appellant, other than the occasions when he was on annual leave, worked overtime from 10.00am to 1.00pm each Saturday and Sunday from January 2015 until April 2017. That overtime was authorised in the normal way by the relevant manager of the Respondent prior to payment.
Finally, it is common case that the cessation of the overtime took place in April 2017 following an adjustment to the duties of the post which the relevant manager described in a letter to the Appellant dated 30thMarch 2017 as being instituted ‘To enable you to get all your core duties carried out within the above timeframe’.
Taking all of the above into consideration the Court concludes that the Appellant was, from January 2015 to April 2017, required to carry out a range of duties which had required the previous incumbent in the post to work overtime between 10.00am and 1.00pm each Saturday and Sunday. It follows that the Appellant was required to work the same overtime in order to discharge the same duties.
The overtime was regular in that it occurred each week. It was not rostered. The Court however believes that reality reflects the absence of rosters in the understood sense of the term in the operational arrangements of the Respondent’s Water caretaking operation. In practice the overtime concerned occurred at the same time each week and therefore the Court concludes that in effect it was rostered.
The Court notes that on a number of occasions after July 2016 the Respondent did ask the Appellant to confine his working hours to those specified in his contract but also notes that the Respondent did not clarify to the Appellant until 30thMarch 2017 how he should adjust his duties so as to be able to meet the requirements of his post within a reduced number of hours.
Taking all of the above into consideration the Court recommends that the Appellant is entitled to compensation at the rate of 1.5 times the annual loss attributable to the removal of the overtime concerned. The standard Public Service formula for calculation of compensation to the Appellant should be adjusted to take account of the fact that the overtime was removed in April 2017 and consequently the annual loss is readily calculable at this remove by reference to earnings in the 12 months before and since the change.
The decision of the Adjudication Officer is accordingly set aside.
Signed on behalf of the Labour Court
Kevin Foley
FMc______________________
25th July 2019Chairman
NOTE
Enquiries concerning this Decision should be addressed to Fiona McCarthy, Court Secretary.