ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00024850

Parties:

Complaint(s):

Date of Adjudication Hearing: 21/01/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 13 of the Industrial Relations Acts 1969] following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background

The claimant was and continues to be employed by the respondent

Summary of Claimants position

Notwithstanding the forgoing, the former case vis-à-vis this submission is not exclusively or confined to, a claim for loss of earnings incurred, and continuously incurred by the claimant

It is about the restoration of the allowance and addressing definitively the negative ramifications pertaining to the claimant’s income and ultimately his pension regarding the non-payment of the “allowance” expressed by way of pay @ €45 approximately per week,” his duties “in the West Cork Area.

It is noted that the respondent has accepted, by way of correspondence dated 29th of August 2018, that the allowance was paid and continue to be paid to” others “post 2013.

The primary purpose, utilising established practice and precedent to garner for the claimant loss of earnings are erroneously withdrawn and the actuarial value of the allowance in question at €2340 per annum, by successfully arguing this case”- by -way -of –a-loss- earnings” that can be utilised to correct the circumstances.

It is, as consistently maintained with reference to the SIPTU/respondent meeting of 24 July 2018, that this allowance was unilaterally excluded from the claimant’s pay (and ultimately his superannuation pension calculation) despite the claimant stated position that the loans continue to be paid.

This situation continued on the part of the respondent. This despite there being precedent for such circumstances whereas similar payment(s) were included for superannuation pension calculation purposes and that these payments were utilised as a vehicle, and rightly so, that in effect and fact increased a “lump sum” of the affected individual with the enhanced amount thus been utilised to” buy “an improved pension.

The Union argued this precedent at the meeting on 24 July 2018.

It should be noted the allowance more than adequately renders itself to the definition,” however expressed “contained in the Labour Court

Recommendation No LCR 20357 wherein it is stated “----------are in reality allowances paid for certain duties”

The context of these circumstances is that “this” allowance was originally conferred/paid in 2012 after considerable agitation, for specific circumstances prevailing in the Skibbereen Area, i.e. after the sewerage pump station in the Village approximately 20 years from the information available to the union.

It is the union’s contention that the respondent should and ought to have given effect to addressing this situation historically (“loss of earnings”) by restoring the allowance with the appropriate retrospection nett, of the so-called compensation paid, if necessary and thus, in keeping with the foregoing continued paying the allowance ultimately included the allowance for superannuation pension purposes upon the claimant’s retirement.

Summary of the Respondent’s position

Respondents stated they received a claim on behalf of the claimant in August 2012.

The following is a summary of the discussions that took place between the respondent the claimant, his Trade Union and a legal representative

Following a series of meetings with the claimant and his representatives a final offer of €5750 was made to the claimant in full and final settlement of all claims of outstanding in respect of wastewater duties in the named location.

The offer was made on the red circle basis and personal holder.

The nature of the offer was not to be used as a precedent in other discussions with any other employees or the union.

The claimant accepted the offer in writing by letter dated 7 October 2013.

The keys of the pumping station were returned to the respondent and the settlement amount was paid by the respondent.

The claim currently before the WRC was made to the respondent in 2017. The respondent engaged with the claimant and his union representative.

Following on from this, on 29 August 2018 respondent confirmed to claimant’s trade union representative that no further payment was due, and that the claim had been fully dealt with in 2013.

The respondent confirmed at this time that a number of other arrangements for part times caretakers also ceased since 2013.

Each of those cases were dealt with on an individual basis, as their duties vary from water, wastewater, and other municipal services, and the scope to observe the duties into existing full-time roles varied from role to role.

The claimant has not carried out any work since 2012 that was subject of the original claim i.e. looking after sewage pumping station at Baltimore.

While the final position that the respondent was to inform the Trade Union on 29 August 2018, a claim was lodged 14 months later, on 18th of October 2019.

The claimant is seeking payment of loss of earnings for undertaking work that he did not undertake.

The 2012 claim in regard to the sewage pumping station work was resolved by way of agreed settlement in 2012, following a negotiating process during which the claimant was represented by his Trade Union and the claimant also engaged services of a solicitor and his behalf.

The claimant was well represented at the time of the negotiated resolution of his claim, and he accepted the settlement offered by the respondent was so represented.

Respondent cannot reopen the 2012, nor compensate for work which was not carried out by the claimant in the interim.

Findings

Both parties made written and verbal submissions at the hearing.

I find that an on the 7th October 2013 the claimant confirmed his acceptance of the full and final agreement.

I find during this process the claimant was fully represented by his Trade Union and he also had the services of legal representation.

I find that the claimant accepted the proposal while so representative.

I find the claimant has not carried out any work associated with the original situation since 2012.

I find that the agreement was on a red circle basis and personal to holder and without precedent.

I find based on all of the information available that where a full and final agreement is reached between the parties and the claimant has the services of full representation of his Trade Union as well as a legal representative

I find in those circumstances I cannot unravel or interfere with the full and final agreement.

Recommendation

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I cannot support the union’s claim and recommend that it be rejected.

Dated:   20-05-2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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