ADJ-00020332

Complainant

Respondent

Anonymised Parties

A Caretaker

A Local Authority

Representatives

PatO'DonoghueSIPTU

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-00026884-001

07/03/2019

The Complainant commenced employment with the Respondent, a Local Authority, on 1 April 2007, in the role of a building caretaker.

The Complainant is in dispute with the Respondent with regard to the application of an on-call allowance and submitted his claim, in this regard, to the WRC on 7 March 2019. He is seeking to have his dispute investigated under the Industrial Relations Act, 1969, and a recommendation to be made in that regard.

According to the Complainants submission, he is employed under a contract of employment providing for a 39-hour week. It was submitted that the Complainant works from Tuesday to Saturday on the set roster but is also required to be available for “out of hours calls”. According to the Complainant’s evidence, these calls arise, in the main, from two sources: (1) from the security company contracted to provide a monitoring service on the building and (2) from the Respondent’s management team in the building.

It was further submitted, on behalf of the Complainant, that he can be contacted by the security company at any time on any day, including his days off during the week and at unsociable hours. According to the Complainant, as a result of being on call, he is constantly mindful of his location and proximity to the building, even when not at work. It was further submitted that when the Complainant is contacted he would normally have to attend at the building to investigate the building security and to establish what may have triggered the relevant alarm.

The Complainant contends that he has kept detailed records of all of these callouts and provided evidence covering the period between 2013 and 2018, in relation to callouts and the security company. These records show callouts ranging from 6 to 14, with an average of 8 per annum. It was further stated on the Complainant’s behalf that he also had details of callouts at the behest of building management and that these could be inspected if necessary.

Details of the Complainant’s dispute:

It was submitted on behalf of the Complainant that his dispute with the Respondent is in relation to compensation for the callouts, as set out in the background above. In this regard, the Complainant refers to the National On Call Provisions agreement of December 2005.

According to the Complainant, he has raised this matter with the Respondent through his Trade Union official, who wrote to the Respondent in January 2018. It was submitted that the Respondent considered the matter and notify the Complainant that it was their view that he was in receipt of the correct entitlement and that there were no outstanding obligations due to him. According to the Complainant’s submission, having been unsuccessful in raising the matter internally, both by formal communication and by informal negotiation, he sought to have the matter referred to the WRC for adjudication.

The Complainant’s claim:

The Complainant is claiming that the Respondent is in breach of the on-call provisions of the 2005 National Agreement. According to representations on behalf of the Complainant, this agreement is the product of binding independent arbitration, which was notified to the relevant Local Authorities through the Local Government Management Agency.

According to the evidence presented on behalf of the Complainant, this agreement provides for a weekly payment of € 84.84 and four hours at double time for each call. It was further submitted that there is also provision for what qualifies as an emergency call as well as their notification and structure of response.

The Complainant admits that while he has been in receipt of the overtime allowance in respect of the callouts he has not been provided with the accompanying allowance. The Complainer further submits that the Respondent is in breach of the referenced agreement in this regard. He further submitted that this agreement amounts to a term of his contract of employment and that the Respondent is, therefore, also in breach of same.

Consequently, the Complainant is claiming arrears in respect of the non-payment of his allowance and a recommendation that this should be applied in future where the claimant qualifies the same in accordance with the National Agreement.

Background:

The Respondent submitted that the Complainant’s Contract of Employment details his working hours as 39 hours per week. In addition, the Respondent submitted that clause 32 of the Complainant’s Contract of Employment requires him to act as a key holder for the building in addition to being named on the Security Alarm Monitoring Contract, which requires him to be available for contact out of hours to inspect the premises in the event the alarm being triggered.

According to the Respondent’s evidence, the issue of an additional on-call weekly payment, as per the national on-call agreement, was initially raised by the Complainant’s Trade Union on 2 January 2018. This correspondence requested that the national on-call agreement be implemented and that the Complainant received payment for all future callouts.

It is submitted that the Complainant’s terms of employment in relation to his Caretaking/Attendant role are clearly laid out and in a consistent manner with regard to the attendance of out of hours calls. The Respondent submitted that the Complainant is being paid overtime to attend any out of hours call outs, i.e. those callouts that are outside his normal working week.

The Respondent submitted that they responded to the correspondence from the Complainant’s Trade Union setting out that, as per his contract of employment, any additional hours worked will be paid at the appropriate overtime rate.

It is submitted that the Trade Union again wrote to the Respondent on 27 January 2018 stating that the Complainant had no idea when he finishes work, whether he will be called out that day and that he only responds when he is called by the security company or the Gardaí and that, based on this, he should be entitled to be paid the appropriate allowance and on-call payment.

According to the Respondent’s evidence, when the matter was raised again by the Complainant’s Trade Union in July 2018, the Respondent replied confirming the position as set out above. It was further submitted by the Respondent that the matter was again raised on the Complainant’s behalf by his Trade Union representative in February 2019.

Respondent’s response to the Complainant’s claim:

According to the Respondent, they had set out their position to the Complainant’s Trade Union representative in relation to the matter under dispute, in January 2018 and again in July 2018, in relation to the national on-call agreement. This position states that an emergency callout “does not include incidences which are notified before end of normal working hours but for which a response will be required outside normal working hours. Compensation in respect of these will be at normal overtime rates and all employees concerned should be advised of this”.

The Respondent submitted that a national review of all allowances was conducted by the Department in 2013 and are set out in Circular Letter [E.L. 06/2012]. This Circular states that On-call was only paid to new beneficiaries “where there is a clear necessity and subject to a minimum of 12 call-outs per annum and evidence of this minimum level of call-out must be provided”.

According to the Respondent’s submission, they monitor callouts on an ongoing basis and review same in relation to the National On-call Agreement/Circular in this regard. It is further submitted that this involves analysing the average number of emergency calls an employee was called to and applying the criteria specified in the Circular.

The Respondent submitted that they reviewed the Complainant’s callout history, from which it was noted that he was called out for a total of five alarm calls (emergency calls) in 2018 and there was no evidence available that demonstrates that this meets the strict criteria of the on-call weekly payment.

According to the Respondent’s evidence, they wrote to the Complainant Trade Union on 8 March 2019, inviting him to submit a detailed account (including dates, nature of callouts etc) to substantiate his claim and to show that he was called out in excess of the minimum required 12 emergency callouts in any one-year period, as per the provisions of the National Agreement and the relevant Circular. The Respondent submits that they received no response or reply from the Complainant or his Trade Union.

The Respondent submitted that the 2013 national review of all allowances conducted by the Department, as detailed in Circular E.L. 06/2012, specified that on-call for new beneficiaries “should only be paid where there is a clear necessity and subject to a minimum of 12 callouts per annum and evidence of this minimum level of call-up must be provided”.

In addition, the Respondent submitted that the National On-call Agreement specified that:

·         The employee will have to ensure that they are fit all times to travel to an incident and have transport available to them. Must utilise all new technology as requested.

·         A detailed log of all callouts will be maintained by those on call. In addition, detailed written report regarding all aspects of the on-call should be completed the following day and actions taken.

·         Emergency callouts will be subject to a management system of monitoring, review and ongoing audit.

·         A rostered system must also be put in place

The Respondent submitted that the National On-call Agreement was confirmed on 20 December 2005 and clarifies that an emergency call “does not include incidences which are notified before end of normal working hours but for which a response will be required outside normal working hours. Compensation in respect of these will be at normal overtime rates”.

The Respondent submitted that, to date, and despite their request to do so, the Complainant has not provided any evidential information to substantiate his claim. It is further submitted that an analysis by the Respondent of the payroll details for the Complainant over a 12-month period illustrates that he does not have the requisite number (12) of callouts as per the Circular.

Conclusion:

In conclusion, the Respondent submitted that the Complainant has not provided any evidential information to substantiate his claim, in a context where the Respondent’s analysis of the situation suggest that he does not have the requisite number of callouts to qualify for payment.  It is further contended by the Respondent that the Complainant does not meet the requirements and is not eligible to be considered for on-call.

Consequently, based on the above, the Respondent requests a finding in their favour and a rejection of the Complainant’s claim.

Having heard the evidence presented by, and on behalf of, both the Complainant and the Respondent, I am fully satisfied that the necessary information/data is available to allow the Respondent to carry out a more comprehensive review of the situation underpinning the Complainant’s claim. 

Consequently, given the positions as evidenced during the discussions at the oral Hearing of the Complainant’s claim and the displayed willingness and bona fide of both parties to resolve the matter, I am satisfied that a basis clearly exists for the satisfactory resolution of this claim at local level.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I make the following recommendation:

Given all the circumstances, I recommended that the parties engage in direct discussions at local level in an effort to resolve the matters at issue. This process should contain of the following elements:

·         The Complainant will provide a Respondent with all details in relation to callouts covering the period 2018 and 2019 to date.

·          On receipt of the above, the Respondent will review same in the context of the application of the relevant National Agreements and Circulars and with specific reference to the particular circumstances that may apply in relation to the Complainant’s work location/local situation.

·          Both parties will apply themselves to the addressing and, hopefully, resolution of the Complainant’s claim, at local level, by the end of August 2019.

In the event that agreement is reached between the parties by the above date, no further action will be required. In the event that the local discussions do not provide for mutual agreement and resolution of the Complainant’s claim, he should contact the WRC in this regard and request a substantive recommendation on his complaint, on the basis as set out under complaint reference ADJ 20332 at the Hearing on 27 May 2019.

Industrial Relations Act

On-call allowances