Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Representatives

Jay Power SIPTU

Self         

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-00032144-001

12/11/2019

The worker was out sick for a prolonged period of time with a chronic medical condition and after discussing a move from his previous work location was offered the Rate Offices, Castle Street because it offered access to toilet facilities. It was agreed that the worker would meet with Ms MA, local manager of the Rates Office in Feb. of 2018. During this meeting Ms MA explained that as part of the duties of the Rates Office it was essential that the building was opened from 7 a.m. until 7 p.m. Monday to Thursday and 7 a.m. until 5 p.m. on Friday. This would mean the worker would be expected to open the building every day earlier than his starting time and the assigned Porter would close the building.   This equated to 8.5 per week or 17 hrs per fortnight of overtime for the worker, which related to a loss of €339.87 per fortnight or annually of €8136.00. Pay slips are attached.

A decision was taken in May of 2019 to close the Castle Street building down as the and redeploy the staff back to the Offices WQ. It should be noted the building was first closed to staff except for The worker and the appointed Porter after Legionnaire’s Disease was found in the facility. When the closure of the facility was announced the worker and the Porter approached the Human Resources Department to talk about either fixing an area of work that helped retain their income or to find a mechanism to compensate both men for the loss of the overtime. The appointed Porter who had been assigned to the facility for over the previous decade was offered a position without loss within the respondent and compensated for his loss of regular rostered overtime.

However, the worker was not given an offer where he could protect his earnings or the same offer of a buyout of the loss of overtime. The worker suggested several other work locations that would have offset a portion of his loss. The Respondent did not consider any of these proposals.

When there was no formal offer of an alternative location that would alleviate the worker’s loss, SIPTU wrote off to the Human Resources Department outlining the different options on behalf of the worker including compensation for his loss.                                                    

The Respondent outlined their reasoning why the worker was not entitled to a buy-out. He was not long enough in the position to be compensated for his loss. Ms SS later stated that as the worker had not completed the 3 years of consistent overtime then he did not meet the criteria for the payment.                                          

The worker appealed the decision to Mr NH. The appeal was unsuccessful.

The worker believes that Respondent decision not to compensate the worker was incorrect. The deciding factor was that ‘he had only 15th months service in the position’. The worker believes this should not have been the overriding factor, because of the extenuating circumstances involved, i.e. that he, ‘The worker’ had entered an arrangement when he commenced his employment within the Rates Office to do regular and rostered overtime, that also had a compulsory nature to it.

The worker also believes that when the respondent terminated this agreement without offering either an alternative position that would have off-set the worker’s loss or compensation, as they did the Porter, was done in error. The worker would also like to state that he was verbally offered a €1,000 settlement as a full and final settlement of his case.

The worker was assigned as a Messenger in the Rates Office and worked regular and rostered overtime associated with the opening and closing of the building. The worker is claiming compensation for the loss of this overtime following his reassignment from the Rates Office.

In assessing a claim for compensation arising from the cessation of overtime the Respondent uses three specific criteria to see if the loss of earnings qualifies for the payment of compensation. These criteria are:

1.            That the overtime was regular and rostered

2.            That the employee was required to work the overtime and was not in a position to turn it    down

3.            That it was of long standing i.e. that the employee had been doing the overtime for a period of three consecutive years or more at the time of cessation.

The Respondent met with the worker and subsequently wrote to him on 15th May 2019 (Appendix 1) informing him of his reassignment. The letter further stated that ‘compensation may be paid at one and a half times the annual loss once all three relevant criteria are met’.

Upon examination it was found that the worker was in receipt of the overtime for a 15 month period (February 2018 to May 2019). Therefore, as he was not in receipt of the overtime for a minimum period of three years he did not meet the third criterion and thereby the overtime did not qualify for the payment of loss of earnings compensation and the worker’s claim was rejected. His Trade Union was informed of this by email on 2nd August 2019.

There was further correspondence between the Respondent and SIPTU on this matter (Appendix 3 – email dated 15th August 2019).

The Respondent met with the worker and his Trade Union on 26th September 2019. Mr NH A/Executive Manager, Human Resources Department explained the criteria regarding the buyout of overtime. Mr. NH undertook to consider the matter. In the interest of good industrial relations an offer of €1,000 was made to Mr NH as a good will gesture. This offer was not accepted the worker

The Respondent believes that this referral to adjudication arose due to the workers concern that the 3 year qualification period is excessive. The Respondent sees 3 years as the minimum period necessary for a payment to be considered as part of pay, which essentially is the issue here. The respondent is formally applying the 3 year qualification period for the following reasons which include being guided by applications that are part of Superannuation practice which is the original source of regular and rostered overtime being considered as part of pay:

1.       Where an employee is promoted, the Superannuation Scheme only allows for the full benefit of the increased pay where the employee has been in receipt of such increase for a full 3 years prior to retirement.

2.       The Superannuation Scheme allows for a “10 year lookback” from the date of retirement of an employee to confirm if any payments (e.g. allowances, regular and rostered overtime etc.) should be allowed for pension purposes. If any payments qualify for inclusion in the pension calculations the “best 3 year in 10 rule” applies i.e. the most beneficial consecutive 3 years in the 10 years prior to retirement will be included in the pension calculations.

3.       It has been the custom and practice for many years to only pay compensation in loss of earnings cases if the payment has been in place for 3 years or more prior to its cessation.

4.       It has been the custom and practice up to now to pay compensation for loss of earnings calculated on the payment as averaged over the previous 3 years prior to cessation.

The Respondent contends that it cannot be expected to compensate for the loss of any payment in the nature of pay where the employee has not been in receipt of this for a minimum period of 3 years on the basis that this would cause a further financial burden to the Respondent who must ensure that it gets best value from its resources as a public service organisation.

The worker takes issue with the respondent’s criteria for assessing when compensation will be paid. He feels that the three years requirement is excessive. I find that the respondent’s criteria is perfectly reasonable. However, I note that the respondent did make an offer of financial compensation, as a gesture of good will. In those circumstances I make the following recommendations:

1.       The worker accept that the respondent’s criteria is fair and reasonable.

2.       The respondent, as a gesture of good will, pay to the complainant compensation in the sum of € 2,000.00.

3.       That the payment should be made within two weeks from the date of this recommendation.

I make the following recommendations:

1.            The worker accept that the respondent’s criteria are fair and reasonable.

2.            The respondent, as a gesture of good will, pay to the complainant compensation in the sum of € 2,000.00.

3.            The payment should be made within two weeks from the date of this recommendation.