Complainant

Respondent

Anonymised Parties

An Engineer

A Local Authority

Representatives

SIPTU

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-00017372-001

09/02/2018

The Worker wants to enforce, what he claims is, his contractual entitlement of being paid expenses through either the payroll system or on a vouched basis.

The Employer said the Worker’s travel and subsistence expense payments are paid on a vouched basis as per the Worker’s original choice back when he signed his original contact. The Employer said that he is not entitled to be paid a ‘site allowance’.

The Worker is an Assistant Resident Engineer who commenced employment with the Employer on 10 September 2007. He is paid fortnightly at a rate of €1,400 net. He was originally on a 2-year contract and in February 2014 was issued with a Contract of Indefinite Duration. Both contracts refer to fixed travel and subsistence allowances attached to the position. The original contract had the option of choosing one of the following methods for payment of that allowance;

either,

(1) - Submit vouched travel and subsistence claim for each travel completed in the course of work, using private car. Overall total payable capped at approved fixed rate travel allowance, where total payable claimed is less than the approved fixed travel allowances, the balance will be paid through the payroll system subject to PAYE and PRSI deduction,

or,

(2) - Receive fixed travel allowance fortnightly through payroll system as a taxable payment, claim back to Revenue Commissioners to recoup tax paid.

The Worker chose payment option number (1), payment via the vouched method.

The Worker went on secondment to a national utility company for 3 years, where he was paid his allowances through the payroll system and he returned to the Employer in September 2016. At this point he requested Human Resources (HR) to continue to pay his allowances through the payroll system as he had a fixed allowances part of his contract of employment. He was informed that he had elected to get paid his allowances previously by the vouched method, and that some allowances were removed since April 2017. There was an introduction of a new pay rates system and it would not be possible to pay the allowances through the payroll system now. HR also indicated that the Worker was no longer entitled to a “site allowance”. By letter of 10 November 2017 the Worker’s representative challenged the Employer’s position, in particular that the “site allowance” was still a payable allowance. HR came back to say that the site allowance was still being paid, but as the Worker was no longer working on site, no consideration would be given to the payment to him.

The Worker said that because of the current impasse with the Employer regarding the way that he is paid the allowance, he has not been paid the fixed allowance and is out of pocket for approximately €3,440 for the period covering 2016 and 2017.

The Worker said that in 2016 he knew of a co-worker, on the same contract and grade as him, who was able to elect to have payment of his travel and subsistence allowance paid through the payroll system. He said that he is entitled to the site allowance as it is clearly stated in his contract of employment. The Worker said that this could have been easily resolved but the Employer has failed to do so and it has caused him great anxiety. The Worker has asked for the reinstatement of the allowance, paid through the payroll system.

The Employer claims that the Worker commenced employment with it in 2007, and having been seconded to a national utility company for a number of years, he returned to his position in September 2016.

The Employer said that the Worker’s first contract of employment provided for the payment of a site allowance “provided all the criteria for the payment of same are met”. It claims there were two options of payment either a fixed site allowance or vouched travel and subsistence and he chose the latter. It claims that the said ‘criteria’ were in relation to whether the claimant was working full time on a site or not. However, the Employer said the Worker was not working on site on a full-time basis at that time. The Employer said the Worker signed a second contract in December 2014, again a term and condition available to him is that he “will be paid an allowance … to cover travel expenses and unsociable hours”. The Employer said the second contract did not specify or give options on how the allowance would be paid.

The Employer said when the Worker returned to it, following secondment, in September 2016, he was again put on vouched travel and subsistence. The Employer claims that custom and practice is that where work is carried out full time on a site the fixed site allowance is paid and where an employee is not working full time on a site they receive vouched travel and subsistence.

The Employer said that in January 2017 the Worker requested to claim a fixed term allowance through payroll instead of the vouched travel and subsistence although he did not work on site full time. The Employer said that the Worker in all his employment with them was paid by the vouched system. It claims that as he was not working full time on site, and therefore he could not claim the fixed site allowance.

The Employer said that the Worker looked for the restoration of the payment of an allowance for travel and subsistence via the payroll system as per his contract dated 02 December 2014, whereas his 2014 contract does not refer to that as an option. The pay option was stated in his first contract of 2007 but not the most recent contract. The most recent contract makes no reference to a “fixed” travel and subsistence allowance, it merely refers to an allowance with no option as to how it was administered. The Employer referred to comparators that the Worker raised as holding the allowance and said, one of them works in a different organisation and it therefore cannot comment, while the other no longer works with it. However, it noted that the second comparator was working split between on-site projects and office operations and thus was more entitled to the allowance.

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

Findings

The original contract of employment clearly states that there is a site allowance of €10,400 attached to the Worker’s position provided all the criteria for payment of same are met. The Worker was given an option by the Employer of choosing one of the following methods for payment: (1) Vouched travel and subsistence … Overall total payment in any year will be capped at approved fixed travel allowance limit. Where vouched travel is less than the approved fixed travel allowances the balance will be paid through the payroll system. Or, (2) receive fixed travel allowance fortnightly through the payroll system. The Employer informed me and asked me to note that the Worker chose to avail of option 1, the vouched travel and subsistence.

I note FEPMI legislation reduced that abovementioned site allowance to €7,800.

The terms and conditions of the Contract of Indefinite duration signed in December 2014 at point 7 - Travel and Subsistence Arrangements reads “you will be paid an allowance of €7,800 to cover travelling expenses and unsociable hours of work”. There are no ‘criteria to be met’ mentioned here.

I believe that the Employer has, in its own submissions, contradicted itself and has not therefore convinced me that there is a set custom and practice in place that is followed consistently. In particular, I note the following points;

1) The criteria for availing of the site allowance, as referred to in the 2007 contract, I am told is only available to full-time on-site engineers and the Worker is not a full-time on-site engineer. The Employer went on to say that the Worker never actually worked as a full-time on-site engineer. However, he was given the option of how he wanted the site allowance to be paid. He chose to be paid via the travel and subsistence vouched system and not the direct payment via payroll system. The Employer said that was his choice and it granted him his wishes and paid him that way. That raises two questions, (a) is he entitled to the allowance or not, if not, why ask him how he would like the allowance to be paid, if he is not entitled to the allowance. (b) what would the employer have done if the Worker said he wanted the allowance to be paid by payroll.

2) I am told that the custom and practice is that only full-time on-site engineers were entitled to the site allowance. The Worker listed site projects he has worked on, but it is evident he is mainly in the office. However, the comparator engineer was paid the site allowance through the payroll system. I understand he shared an office with the Worker and had an operational roll as well as an on-site project management role. It is clear he did not work full time on site but was paid the allowance. The two questions that arise here are; (a) what percentage of the work is required for an employee to be on-site to qualify for the allowance, if their role is split between operational and on-site projects. (b) Who makes the decision on that.

3) The Employer said that the Worker is not entitled to a site allowance. However, I note at point 7 of his contract of indefinite duration of December 2014, under the heading Travel and subsistence arrangement it clearly states that “you will be paid an allowance of €7,800 to cover travelling expenses and unsociable hours of work”. The allowance in the CID as underlined would appear to be similar to the site allowance mentioned in the Worker’s first contract and the Employer has explained to me this was reduced down from €10,400 to €7,800 due to FEMPI. There is no reference under this term of the contract to any criteria that needs to be met. The question here is why in 2014 was the Worker advised again that the post attracts an allowance if he is not entitled to it.

4) I note that the grievance raised by the Worker internally was rejected, mainly on the grounds that the Workers role had changed from what was originally envisaged, he was mainly based in the office, only on site from time-to-time, that there was a policy of payment of site allowances to cover travel and subsistence from base to site of a scale depending on the distance from the base ([…] €7,800 if more than 15 miles from base). It said that the Worker does not satisfy the conditions for the payment of a site allowance and it was difficult to justify the payment of such an allowance. However, in a follow up email the Worker was informed that there was another engineer on a CID who was in receipt of a fixed allowance, whose work was split between operational work and site work, but that was more justifiable.

I believe that there are many inconsistencies here.

I note that in the past number of years the Employer is paying the Workers travel and subsistence for these daily work expenses and ‘other events’ and this amounts to more than €7,800 p.a. I note that the Workers believes that he is due both the ‘site’ allowance and his ‘other events’ travel and subsistence.

The contracts of employment do not seem to assist in what exactly the allowance covers; what is the criteria for availing of the allowance; whether ALL the Worker’s Travel and Subsistence is capped at the €7,800. The question I have been asked appears on the face of it a simple one, whether the Worker is entitled to be paid this Travel and Subsistence allowance via the payroll system. However, it has a much broader significance, it really is whether the Worker is entitled or not to the site allowance and if so can he claim travel and subsistence on other travel over and above the daily travel to and from sites.

Recommendation

The Employer dictates where the Worker is engaged within its employment and what duties he is engaged in as Assistant Resident Engineer. The Worker holds a CID, which at point 7 clearly indicates the Travel and Subsistence arrangement. It refers to an allowance of €7,800.

It is common case that the allowance is a payment additional to basic rates of pay for a class or grade of worker. It is common case that it was payable to the worker through the vouched system prior to him going on secondment. I believe that he returned to the Employer under the same/similar role under the 2014 contract and is due to be given the same conditions as existed as previously.

I would recommend that both parties revert back to the terms and conditions of the contract of employment, in particular where it states that the Worker will be paid an allowance of €7,800 to cover travelling expenses and unsociable hours of work.

I would recommend that he is paid that allowance as he was paid prior to going out on secondment via the vouched system and any shortfall to that amount for day to day expenses is paid to him in a one-off payment, at the of each year, as was originally set out in his contract in 2007.

I note that a policy was introduced in 2015 in relation to payment of the site allowance based on distance from base to site. If that policy relates to all site allowance holders employed by the Employer, I recommend that that should also apply here to. If there are inconsistencies to who it applies to, the full €7,800 should be paid to the Worker.

I recommend his ‘other’ travel and subsistence – not site visits - is paid separately and not from his site allowance.

I recommend that the Employers pay the Worker €4,000 [four thousand euro] in compensation for the years 2016 to 2018 as full and final settlement for those years and the new arrangement to apply from 2019.