Worker

Employer

Anonymised Parties

Former pre-school assistant

Non-profit organisation

Representatives

SIPTU

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-00022328-001

03/10/2018

The Worker was employed by the Employer from 1st September 2008 to 22nd June 2018. She submitted her dispute in relation to the underpayment of wages and allowances to the WRC on 3rd October 2018.

SIPTU on behalf of the Worker submits that the therein case arises from an ongoing dispute between the Worker and her former employer regarding incorrect rates of pay applied over a prolonged period of work within the organisation. SIPTU submits that this case has been previously heard under the auspices of the Adjudication Service of the WRC on 28th May 2018 but remains unresolved.

Incorrect rate of pay:

SIPTU submits that it came to the Worker’s attention during her employment with the Employer that she was receiving a different hourly rate of pay by comparison with some colleagues. When the Worker enquired with the HR, she was advised that a small number of employees had indeed been the victims of a ‘glitch’ in the system and had suffered a loss of earnings as a result of the error. In spite of that concession on management’s part, no effort was made to rectify the matter and no details were ever provided regarding the duration of the underpayment, the reason for it, or the differential between what was received and what was owed. SIPTU made numerous attempts to agree terms with management on the Worker’s behalf but noted that management lacked any appetite to correct the error. SIPTU claims that there are anecdotal reports of the Employer having settled terms with one of the employees affected.

SIPTU submits that the Worker is acutely aware of the financial constraints suffered by the organisations such as the Employer and would have been willing to consider any reasonable attempt to remedy the error, despite the financial hardship it has placed on her own circumstances. Instead, the Worker’s representative found it difficult to even engage with management.

The unfair treatment on part of the Employer was further compounded by the Worker being phased out of the pre-school part of her job and being assigned almost exclusively to family support work. This resulted in a significant reduction in the hours of work available to her weekly and added to the financial hardship already imposed on her. Family support also creates other difficulties such as payment for travel time which was subsequently mishandled by the Employer and resulted in sporadic and/or late payments and, on occasion, withholding the agreed remuneration.

In the course of the hearing last May, SIPTU was unable to identify an accurate figure to represent the loss endured by the Worker and it appears that the Employer’s representatives were not in a position to provide accurate records to inform the discussion about settlement. The Adjudicator recommended that the hearing be adjourned and that the Employer would undertake to ascertain the sum owed and that the parties would reconvene if agreement could not be reached at that point. In spite of the considerable lapse of time, none of the information requested has been supplied and SIPTU therefore has experienced some difficulty in estimating a figure on which to base the claim. In light of the lack of clarity around the length of time the Worker was being underpaid, SIPTU must assume that this error was governing her rate of pay from the commencement of her employment in 2008.

SIPTU claims that the Worker has been extremely disappointed by the treatment she has been forced to endure. Her preference would have been to remain in employment but the circumstances made it impossible and she left in July 2018.

SIPTU submits that at the hearing in February 2019, management advised that they were aware of the underpayment, acknowledged that money was owed to those affected and that the matter was being dealt with in the context of a collective claim, due for further discussions in conciliation. At that hearing, SIPTU stated that it intended to keep the matter on the agenda but, if some resolution was reached through the collective process it would be satisfied to withdraw the individual claim. SIPTU claims that, contrary to the indication given in February, management changed its position and argues now that no money was available. In light of that change of position, SIPTU is obliged to continue with the pursuit of the underpayment on behalf of the Worker.

Reduction of working hours:

The Worker’s contract of employment was specifically for pre-school work but she consistently did a mixture of pre-school and family support work. The Worker was phased out of the pre-school part of her job and was assigned almost exclusively to family support work. SIPTU argues that, contrary to management’s assertions, the role was not vacated as the Worker was replaced in pre-school. Also, the Worker had not declared herself unavailable for work, she was consistently travelling greater distances to fulfil her duties in family support. The Worker’s removal from the pre-school roster resulted in a significant reduction in the hours of work available to her weekly. SIPTU claims that, in spite being available for work she lost an average of 15 hours per week with her removal from the pre-school function and sole dependence on hours from the family support rota. SIPTU requests that the significant reduction in working hours allocated to the Worker for the last year of her employment with the Employer will be taken into consideration when examining the claim.

Travel time:

SIPTU submits that family support created a further issues as payment for travel time was subsequently mishandled. The reimbursement for travel was made in the form of one hour’s pay per day, but this was regularly disrupted with late payment or failure to pay the sum owed at all. HR have stated that no payment was ever made to cover travel costs for family support but the time sheets clearly indicate otherwise.

At the hearing on 28th February 2019, the Employer submitted that the pre-school service was closed in June/July 2018. At the time SIPTU, on behalf of the Complainant negotiated redundancy and the matters raised at the hearing were not brought up.

In respect of the matter of underpayment, the Employer submits that the matter of the incorrect application of increments affected a group of workers and is dealt with on a collective basis. Firstly, it had been dealt with through the conciliation service of the WRC. The discussions took place on 7th November 2017 at which the Employer’s offer was rejected and the parties were to resume discussion on 13th March 2019. At the hearing on 16th April 2019, the Employer confirmed that, as no resolution has been reached at the conciliation process, the matter was now been referred to the Labour Court.

In respect of the reduction of hours and the compensation sought for loss in relation to the hours the Worker claims she was available for work, the Employer claims that the Worker initially worked 5 days a week. Her working time was reduced to 3 days by mutual agreement and the Worker worked in both pre-school and family support. The Respondent claims that the pre-school services ceased in June 2018. The Employer did not dispute that the Worker’s hours were reduced at some stage to 1-2 hours per week in family support. The Employer argued that there was availability issue when the Worker moved to another location. The Employer exhibited copies of emails from Coordinator dated 27th June 2017 and 25th July 2017. The email of 27th June 2017 states as follows: “my understanding is that you are not yet certain which days of any given week that you may be available to do PSA hours. Your current family support hours are still ongoing as far as I am aware and these change somewhat on alternate weeks. On that basis I can’t assign PSA hours to you for the moment. When your availability is more certain can you let me know?” On 25th July 2017, the Coordinator wrote: “As explained in my last email on the 27th June, I have not been able to assign hours to you for September as your daily availability was uncertain. Of course, things can change as we know from experience and should any hours become available that are a match for your availability and location I will of course keep you in mind.” The Employer argues that the Worker has never raised the matter via internal grievance procedures.

In relation to the matter of travel time, the Employer claims that no travel time is paid except in cases of local agreements. At the hearing in February the Employer was not aware whether there was such local agreement in the Worker’s location. At the hearing on 16th April 2019, the Employer confirmed that travel time is paid at hourly rate. The Employer stated that the payroll department had reviewed the Worker’s timesheets and payslips, and she was paid travel time as per the timesheets. The Employer presented an email from the Coordinator in Family Support unit dated 1st March 2019. The Coordinator stated in her email that the matter had been clarified to the Worker previously. She noted that “there was a period when the Worker was paid for travel time in order to deliver family support hours to a particular family. During this time [the Worker] was off sick for a time – she was paid these family support work hours as she was out sick but not paid for the travel aspect as she wasn’t actually travelling to deliver the hours while out sick.” The Employer noted that this matter was not raised by the Worker via internal grievance procedures.

The Employer argued that the Worker withdrew her original complaint on 28th May 2018 and she was made aware at the time of the hearing that no grievance was raised with the Employer in the first place. The Worker’s redundancy was negotiated by SIPTU and finalised on 22nd June 2018. These matters were not raised. In October 2018, the Worker again submitted her complaint to the WRC.

In relation to this dispute I find as follows:

There are three separate aspects of the Worker’s claim: the matter of increments, the reduction of hours and the travel time payment.

In relation to the matter of increments I find that it is being dealt with on a collective basis and it was referred to the Labour Court.

Section 13(2) of the Industrial Relations Act 1969 provides a statutory restriction on the types of cases Adjudicators may hear. They may not investigate disputes connected with rates of pay, hours or times of work or annual holidays of a body of workers.

“Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.”

I, therefore find that I have no jurisdiction to deal with this matter.

In respect of the reduction of hours and travel time payment I find that the Employer argued that these matters have not been raised internally. SIPTU confirmed that the internal grievance procedures were not instigated.

In Geoghegan T/A Taps v a Worker INT 1014 the Labour Court held that “The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.” It is well established by the Workplace Relations Commission and the Labour Court that they do not intervene in a dispute under Section 13 of the Industrial Relations Act 1969 until all internal grievance procedures have been fully exhausted. Had the matters been raised internally it could be expected that they would be addressed as part of the negotiation of the exit package of the Worker. This has clearly not happened in the circumstances of the present dispute.

Having considered the submissions of both parties to this dispute I do not recommend in favour of the Worker.

internal procedures not exhausted- travel time payment- reduction of hours- increments underpayment