Complainant

Respondent

Anonymised Parties

A worker

A public Utility

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029893-001

25/07/2019

The issue in this case centres on how overtime is affected by absence from work.

The Complainant says that the maximum number of hours he is entitled to work in the calendar year – per the terms of the Organisation of Working Time Act, is 2496 hours i.e. 48 hours per week x 52 weeks. He says that he has had 53 days absence due to recurring serious illness in the past year and now discovers that this absence is added to his working hours thus reducing his access to overtime, when it is available and he is available.

He says that this is contrary to his Terms of Employment and so takes his complaint forward under Section 7 of the Terms of Employment (Information) Act, 1994.

He says that given that this has prevailed for some time now he wants his access to overtime, in accordance with his understanding of the agreed terms of employment, to be restored to him.

In response to questions from me in relation to the terms of the agreement on this issue and the undoubted complications around the terms, the Respondent requested an adjournment to enable him and the Complainant to meet to discuss the issue in detail. I agreed to the request.

The Complainant returned to me by correspondence in November 2019 to advise that the meeting had taken place, but that there was no satisfactory resolution from his viewpoint. That being the case the parties agreed that I would issue my decision, without further discussion.

They advised the Complainant that they had the right, within the terms of agreement with their union, who represent their staff, to deal with overtime in this way. They said it represented a necessary cost saving.

It appears that the Complainant receives overtime as a normal part of his working week but was not aware, until he had a series of illness absences how such absence hours would affect his right to “non-rostered” overtime. He is not a member of the union that negotiates terms and conditions of employment with the Respondent and it may be that he has not had explanation of these terms communicated to him in the detail required by the Respondent. When he did receive the explanation in the discussion during the adjournment of the case, he was alarmed at the effect that illness absence had on his earning power. The Respondent accepts the bona fides of his illness.

It does appear, though, that he is receiving the full terms of his contract as negotiated. The information in relation to these terms as they are now and as they change must be communicated by the Respondent before changes are implemented. This is their duty to the complainant.

I cannot say that there has been any deliberate lack of such communication in this instance, but it is difficult to understand how an employee of long standing did clearly not understand the rules on overtime use in illness situations.

I find that the complaint fails under the Act under which it is pursued as I have to take it that these are the terms that apply to all employees.