Employee

Employer

Anonymised Parties

A General Operative

A Local Authority

Act

Dispute Reference No.

Date of Receipt

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

CA-00042966-001

09/03/2021

The employee joined the local authority in 1999 as a craftsman and worked as a “ganger” in a particular department.  By the date of the hearing of this dispute, his annual salary was €33,750.  Until 2018, he worked overtime every Saturday and this provided him with significant additional earnings.  In 2019, when he transferred to a different job, overtime was no longer available and the subject of this dispute is a claim for compensation for the loss of overtime pay.

In the summer of 2017, the employee disclosed to his shop steward that he was suffering nervous stress and tension due to the way he was treated by a colleague.  The union’s submission states that the employee had lost weight and was in such a bad way that he was barely recognisable.  With his shop steward, the employee reported the problem to the HR department and he attended a seminar on dignity at work and learned about the process of advancing a complaint.  The employee felt unable to go through the protracted procedure involved in an investigation into a complaint.  Given what was described as the “veiled and insidious nature of the abuse,” he doubted that he would be able to vindicate his case.

Following a period of sick leave, the employee returned to work on temporary redeployment to a different section.  He retained his regular and rostered overtime and suffered no loss of earnings from January to December 2018.  The employee was unhappy in the new position, and he asked for assistance to be assigned to a job more suited to his skills.  With the assistance of senior management and the HR department, a role was identified and the employee was happy to accept it.  The only downside was the fact that no Saturday work was required and, on taking up the new job, the employee had to accept the loss of overtime.

The union’s submission notes that the employee was grateful for the assistance of his employer in identifying a suitable job for him, which he enjoys.  He accepted that he would no longer be entitled to overtime pay, but he felt that he was entitled to compensation for the loss of that pay.  While there was some engagement with the HR department regarding compensation, the discussions foundered on the basis of the employer’s position that this employee asked to be transferred to a new role and that he was not redeployed.

It is the union’s case that this employee was forced to move from a job he was in for 18 years “by reasons of a breakdown, brought about by a corrosive and toxic situation at work, that finally got the better of him.”  His predicament was so limited that, to preserve his mental health, he had to accept the severe financial losses associated with the move.  To suggest that the move was at his own request is to misrepresent the situation he was in.

In their submission, the union representatives stated that this claim was without precedent and “entirely specific to these circumstances” and they committed that any finding in favour of this employee would have no effect on any future cases.

On behalf of the local authority, Mr Irvine said that they refute that there is any entitlement to compensation for loss of overtime because the employee looked for a transfer.  Before he accepted the new role, he was informed that he would suffer a loss of earnings because there would be no Saturday overtime.  The employee met with a member of the HR section who outlined in detail the financial implications of his transfer request, explaining the reduction in earnings due to the loss of overtime and the potential effect it would have on his pension, depending on his retirement date.  It is the employer’s case that the employee agreed to transfer on April 11th 2019, “knowing fully the implications.”

The issue of loss of earnings was raised by the employee’s shop steward in June 2020 and following some meetings and an exchange of correspondence ending in August 2020, a resolution had not been found.  In March 2021, the dispute was submitted to the WRC for adjudication.

Redeployment, initiated by the employer, is a specific policy agreed between the public service unions and the employers under the Croke Park Public Service Agreement 2010 – 2014.  It sets out an approach to the transfer of staff in the context of the moratorium on recruitment that was in place following the financial crisis from 2008.  The employee who is the subject of this dispute was not redeployed inn accordance with this policy, but he requested a transfer to another post.   He had several meetings at which he was informed of the implications, and, in full knowledge of the facts, he made the decision to move.

Mr Irvine submitted that there is no precedent and no case law regarding compensation for an employee who requests a transfer.  He argued that the employee’s loss arises from his own decision to transfer and that, if he had not looked for a transfer, he would have remained in his former job and continued to enjoy the overtime.

Having listened to both sides at the hearing of this dispute, I acknowledge that the circumstances are unusual.  It is evident that the employee wanted to move from the job he was in for 18 years; however, his motivation for doing so was not to enhance his career or increase his earnings.  He moved to bring an end to the abusive treatment of a colleague and to protect his health.

I accept that the employee got assistance to consider the implications of making a complaint under the authority’s Dignity at Work policy and I was impressed at the hearing by the evidence of the manager in the HR section, who said that he would have been supported if he had made a complaint.  It’s clear that he hadn’t got the strength to do so, and I can understand why. 

As anyone who has had experience of bullying will know, the intention of a bully is to incite fear.  Sometimes the fear is irrational, but, over time, being abused affects one’s capacity for clear thinking.  In the case of this employee, when he was able to confide in his shop steward, all he could do was arrange to extract himself from the abusive environment.  This is not a free and un-encumbered decision, but an attempt at self-preservation.

For this reason, I find myself in agreement with the employee’s claim that he is entitled to compensation for loss of overtime pay.  I have reached this conclusion for the following reasons also:

1.              By not initiating a complaint, the employee has saved his employer from significant outlay in terms of finance and resources.

2.              By highlighting his grievance in an informal manner, he provided his employer with an opportunity to intervene informally to address the behaviour of the protagonist and to avoid a disciplinary sanction and possible further complaints.

3.              I understand that the employee was not replaced in his former role and that the Saturday overtime was discontinued, representing a significant saving to the local authority.

At the hearing, the HR manager said that, in the year before he moved to his new role, the employee earned €7,087.57 in overtime.  In settlement of this dispute, I recommend that his employer pays him €11,000, representing approximately 1.5 times that amount.  I note the undertaking of the SIPTU representatives that this settlement does not establish a precedent for similar cases in the future.  

Loss of overtime