Complainant

Respondent

Anonymised Parties

A local authority employee

A local authority

Representatives

Niall Phillips SIPTU Workers Rights Centre

Keith Irvine LGMA

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-00029547-001

09/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029548-001

09/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029549-001

09/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029550-001

09/07/2019

In seeking to have an Adjudication Officer’s recommendation implemented differences of interpretation arose due to a typographical error in the text.

On 19th Oct 2017 the employee’s union referred a number of issues on his behalf to the WRC and a recommendation issued on 10th July 2018. One of the issues related to loss of overtime and the Adjudication Officer recommended that the employer pay compensation for the loss of regular overtime at 1.5 times the annual loss and that the loss should be calculated based on the employee’s last two full years performing that overtime. Several months after the recommendation issued the employer supplied the figures in relation to the money to be paid to the employee and it became apparent that the amount to be paid in overtime was grossly underestimated;   €1078.72 instead of €7274.90.

Following discussion it became apparent that the employer had made the calculations based on dates set out in the AO’s recommendation which the employee believes were a typographical error as they were in contradiction to the substantive recommendation which said that thecompensation should be paid at 1.5 time the annual loss, that the loss be calculated based on his last two full years performing the overtime. The dates then provided by the AO were 1st April 2015 to 31st March 2016 and 1st April 2016 to 31st March 2017.   This can only be a typographical error as the digger which the claimant operated as part of the regular overtime was actually sold at the end of 2015. This meant that the last two full years that he performed the actual over time were 2014 and 2015.

The AO acknowledged this in his recommendation when he stated;

I note the overtime involved in the instant case was performed by the complainant driving the JCB from 2011 to 2015 a period of 4 years before it ceased.

Preliminary Matter

The Council do not believe that the Adjudication Officer has jurisdiction to consider this complaint which is effectively seeking to change a previous recommendation of a WRC Adjudicator. The original complaint was made under the Industrial Relations Acts and the provisions of Section 13 (9) clearly set out the process to be followed in such instances… 13 (9) (a) A party to a dispute in relation to which a rights commissioner has made a recommendation may appeal to the Court against the recommendation and the parties to the dispute shall be bound by the decision of the Court on the appeal.

Section 13 (10) clearly provides that the only recourse open to the Complainant is by way of appeal to the Labour Court:

(10) The Court shall not investigate (except by way of appeal to it under subsection (9) of this section) a trade dispute in relation to which a rights commissioner has made a recommendation.

It was open to both parties to decide if they wished to appeal the decision once received neither party did so.

Substantive claim

Without prejudice to the above if the complaint as set out is considered to be bona fide then Council is entitled to treat this as a de novo hearing of the of the original complaint and to address all the matters of the decision of the Adjudication officer.

“As a full and final settlement of the claims before me I recommend that (a) the Employer return to the Complainant to the location from which he was redeployed on 8th June 2017 or to some other location that will place him in a location that is within the radius that will allow him to resume and fully perform his role as a Firefighter and that this be completed within 4 weeks of the date of this recommendation and in meaningful consultation with the Complainant and his trade union, SIPTU.   I further require the Employer to pay the Complainant €700.00c for loss of call-out payments.”

The Council believe that it was fully entitled to reassign the staff member in question. The Adjudication officer made specific reference to redeployment in his recommendation. The Public Service Agreements (PSAs) covering the period 2010-16 (the Croke Park and Haddington Road Agreements) provide for agreed redeployment arrangements to apply in the Civil Service and in other parts of the Public Service. Under the PSAs, redeployment generally takes precedence over all other methods of filling a vacancy and supersedes any existing agreements on the deployment of staff. Redeployment allows staff to be moved as a result of the rationalisation, reconfiguration or restructuring of public service bodies or where activities have assumed lesser priority arising from changing business needs. The Council are satisfied that the movement of the complainant was in accordance with these provisions and that the Adjudication erred in his recommendation:

“They said the Complainant also received emergency call-outs throughout the year outside of the Winter Maintenance Programme.   SIPTU said that on average, these call-outs and Winter Maintenance Programme was worth €5,000.00c per annum to the Complainant.   SIPTU said the Employer has never compensated the Complainant for this loss of regular overtime and the Complainant is now seeking payment of this.”

“In relation to the claim in respect of overtime I recommend that the Employer pay the Complainant compensation for the loss of the overtime in question.   This compensation should be at 1.5 times his annual loss, that the loss should be calculated based on his last two full years performing that overtime, i.e. from 1st April 2015 to 31st March 2016 and from 1st April 2016 to 31st March 2017, and I recommend this be paid to the Complainant within 6 weeks of the date of this recommendation.”

The Adjudicator set out the basis for compensation as in accordance with the provisions of the Public Service Agreement however in doing so he failed to reflect the principles which apply in relation to this. The labour Court have confirmed that in order for such overtime to be considered to be compensated the overtime must regular, rostered, and undertaken on a compulsory/contractual basis. Within the Adjudication the report SIPTU have specifically stated “They said the Complainant also received emergency call-outs throughout the year outside of the Winter Maintenance Programme.   SIPTU said that on average, these call-outs and Winter Maintenance Programme was worth €5,000.00c per annum to the Complainant.   SIPTU said the Employer has never compensated the Complainant for this loss of regular overtime and the Complainant is now seeking payment of this”

As confirmed by the Complainant this overtime was been undertaken on an emergency call out basis and therefore on the rules which have been established the overtime in question cannot be considered to be compensatable.

“I further recommend that the Employer pay the Complainant the sum of €5,000.00c for the way it handled this matter.   For the avoidance of doubt I wish to confirm that this sum is not wages or arrears of wages, but rather is compensation for the way the respondent handled this matter and its treatment of the Complainant in these matters.”

This award and the phraseology used is suggestive that it was not subject to Income Tax as per Section 192 A of the Taxes Consolidation Act 1997 as amended by Section 7 of the Finance Act 2004. The effectively provides for a gross payment of circa €10,000.00. As the complainant was being compensated for all other economic loss an award of €10,000 for the way the Complainant “handled the matter” is clearly excessive.   The Council would see that the sum awarded by the Adjudicator was not justified by any loss incurred by the Complainant did not suffer any loss in consequence of the matters of which he makes his complaint. The statement by the Adjudicator referencing how the Council handled the matter is made without any substance to sustain it and is nebulous providing no real explanation. By issuing such a recommendation with the level of quantum the Adjudicator has inferred that the Council acted in some malicious or vexatious fashion which the Council would vehemently deny.

Conclusion

Without prejudice to the preliminary issues the Council do not accept that the original recommendation of the Adjudicator can be sustained and wish to have it amended

Preliminary issue.

The employer has argued that I do not have jurisdiction to hear this complaint as it has already been the subject of a recommendation from an Adjudication Officer and the only avenue open to the employee was an appeal to the labour court. The role of an Adjudication Officer in referrals under the Industrial Relations Act is to attempt to help parties resolve industrial relations issues and to issue recommendations rather than decisions. The issue referred to me was not the merits of the original claim but rather the interpretation of the text of recommendation.

Section 13(2) of the Industrial Relations Act 1969 provides that;

b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner

Section 36 of the Industrial Relations Act 1990 provides that:

36.—(1) An objection under section 13 (3) (b) (ii) of the Industrial Relations Act, 1969 , by a party to a trade dispute to an investigation of the dispute by a rights commissioner shall be of no effect unless it is notified in writing to the commissioner within three weeks after notice of the reference of the dispute to the commissioner has been sent by post to that party

I note that the employer in this instance made no objection under the Industrial Relations Act, to this complaint being investigated by me and therefore I conclude that I have jurisdiction.

Substantive Issues

1 Overtime

On reading the original recommendation made in relation to the overtime issue it is my view that the only interpretation that makes sense is that the ‘compensation’ relates to the last two years in which the overtime was carried out, and that the specific dates mentioned in that regard were erroneous. I therefore conclude that the complaint is well founded.

2 Other Issues

The employer is asking that I review the entirety of the AO’s recommendation on the other issues and not just the error in the dates of the overtime. I do not believe it appropriate that I review these issues as the intended recommendation of the AO in relation to these issues is unambiguous and there is no difference of interpretation between the parties.

There are four identical complaints made by the employee and therefore I am making one recommendation covering all complaints; I find the complaint is well founded and I recommend that the loss of overtime be calculated on the last two full years’ of overtime performed by the employee which were 2014 and 2015.

Industrial relations, interpretation of recommendation