FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LIMERICK CITY & COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Mr Hall |
1. An appeal of an Adjudication Officer's Recommendation No. ADJ-00011045.
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Union on behalf of the Worker. On the 12 December 2018 the Adjudication Officer issued the following Recommendation:-
- “This case was heard in May 2018 and the Respondent was to provide further detail regarding the Sunday overtime worked by the Complainant subsequent to the Hearing but despite two follow up requests from the Adjudicator to supply the information this has not been provided. On November 7th 2018 the Complainants Representative requested a recommendation be issued on the basis of the information already provided. I cannot recommend in this case that the overtime be included in the calculation of pension on two grounds. Firstly, the overtime was not part of the Complainants main duties in his role as a General Operative. It was a secondary role performed due to staff shortages and financial limitations at the time. It was also not “part and parcel” of his standard employment and therefore had an optional element to it. Secondly, on the basis of the information supplied, the overtime was not regular. It was completed only approximately 50% of the time when required (on Saturdays) and when he was not available to perform the overtime work it was performed by a third party therefore showing the optional, non-exceptional and non-rostered nature of the overtime. While it is disappointing that the Respondent did not supply the information for the Sunday overtime worked I do not believe the lack of this information fundamentally changes the grounds for not recommending the inclusion of the overtime for pension purposes.”
A Labour Court hearing took place on the 1 May 2019.
DECISION:
The matter before the Court is an appeal by a Claimant against an Adjudication Officer’s Recommendation, which found against his claim that the Council had failed to include an element of overtime in his pension entitlements, contrary to Circular 12/91.
The Complainant commenced employment with the Council as a General Operative working in the Parks Department on 16thMarch 1994. He retired from employment on 15thMay 2017. He referred his claim to the Workplace Relations Commission on 3rdOctober 2017.
The Union on behalf of the Claimant submitted to the Court that the overtime worked by the Claimant was regular and rostered and fulfilled the criteria for its inclusion in his pension entitlements as set out in Circular 12/91. It stated that he was rostered to work on Saturday one week and on Sundays on alternative weeks.
The Council accepted that the Claimant was rostered to carry out the overtime and that it was regular. It also accepted that he had been carrying out these duties since 1994. However, it submitted that as the overtime in question was not compulsory it did not meet the criteria. Furthermore, it submitted that the overtime duties he carried out were Park Ranger duties and accordingly did not fulfill part of his normal day to day duties, as required by the Circular. The Council produced records for the Court of the overtime worked by the Claimant for the period when such records were available, i.e., from August 2010 to December 2016. The Council stated that this overtime arose due to staff shortages.
Having examined the records, the Court notes that the pattern of overtime worked was consistent, regular and as submitted by the Union, it was worked on a rostered weekend basis. Circular 12/91 provides that overtime payments may only reckon for superannuation purposes in exceptional circumstances and where specific conditions are fulfilled. The Court is satisfied that the overtime worked by the Claimant on a regular and rostered basis since 1994, carrying out duties in the Park Department, filling in for a vacant position, comes within the definition of exceptional circumstances and meets the criteria set down in Circular 12/91. Therefore, the Court concedes the claim and recommends that the overtime payments in question should be reckonable for superannuation purposes in respect of the named Claimant involved in this claim. Therefore, the Adjudication Officer’s Recommendation is overturned, and the appeal succeeds.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
21 May 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.