ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969

Investigation Recommendation Reference:  ADJ-00032397

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:             10/06/2021 & 08/09/2021

Location of Hearing:      Remote Hearings

Procedure:

This dispute pursuant to Section 13 of the Industrial Relations Act 1969 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 10th March 2021.  It was duplicated during resubmission so Dispute Ref. CA-00043025-001 is deemed withdrawn.  Following delegation to me by the Director General, I inquired into this dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held remote hearings of this dispute on 10th June 2021 and 8th September 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designates the WRC as a body empowered to hold remote hearings. 

There was no objection to an investigation of this dispute by an Adjudication Officer of the WRC by the Employer under Section 36(1) of the Industrial Relations Act 1990.  However, at the outset, a concern was expressed that this dispute may have a collective element in terms of its precedent effect and hence fall outside the jurisdiction of the WRC under Section 13(2) of the Industrial Relations Act 1969 providing: “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.”  It was common-case that although there are other Specialist Caretakers working within the local authorities, the Worker was the only employee holding his particular position for the Employer.  I proceeded on the basis that any recommendation would pertain specifically to the Worker and not have a collective effect. 

Summary of Worker’s Case:

The Worker commenced employment with the Employer, a County Council on 19th March 2019 as a Temporary Specialist Caretaker, a Non-Officer Grade, filling a position whilst its current holder is on secondment.  His particular role requires him to travel all over the County on a regular basis away from his work base without access to canteen facilities.  He maintains that he is entitled to a subsistence allowance known as an ‘off-site meal allowance’ which had been paid to his three predecessors based upon approved claims.  Whilst not expressly provided for in his contract he learned about the allowance from his last predecessor during induction.  The allowance is to defray the cost of purchasing food where an employee is required to work away from base without access to canteen facilities.  He has been in receipt of an ‘eating-on-site allowance’ which is a fraction of the off-site meal allowance and seeks payment of the latter along with back-payment of the difference.  Having exhausted the internal process, the Worker seeks adjudication from the WRC on this issue.  He rejects the Employer’s position that the allowance was erroneously paid to his predecessors.

Having commenced employment on 16th June 2020, the Worker wrote to the Employer enquiring about his entitlement to claim the off-site meal allowance.  By reply of 9th July 2020, the Employer held that his position did not attract the off-site meal allowance as his contract of employment was based upon a Non-Officer Grade providing for an ‘eating-on-site allowance’ in accordance with a collective agreement.  The Worker appealed this decision internally on 1st March 2021.  The decision was upheld on 4th March 2021 and the Worker referred this dispute to the WRC on 10th March 2021. 

Summary of Employer’s Case:

The Employer’s position and handling of this dispute was outlined with reference to the documentation furnished.  It was explained that subsistence allowances developed historically within local authorities in recognition of the requirement to work away from base.  The ‘eating-on-site allowance’ applied to Non-Officer Grade (outdoor) employees for days (calculated on the time-period away) worked off-site and a more generous subsistence allowance known as ‘off-site meal allowance’ applied to Officer Grade (indoor/admin) employees for occasional days away from base.

The Employer maintains that the Worker is currently being paid the correct subsistence allowance.  Documentation comprising of collective agreements from 1987 & 1993 and circulars regarding subsistence allowances payable to local authority employees was furnished to the WRC.  Reliance was placed upon same to contend that the Worker was a ‘new employee’ of Non-Officer Grade and hence the applicable section dealing with allowances applied as follows: “New employees will only be entitled to the eating-on-site allowance.”  Therefore, the Employer had no ability to pay the Worker the off-site meal allowance where the guidance in this respect was clear.  It was accepted that three of the Worker’s predecessors who commenced employment since the introduction of these collective agreements were paid an off-site meal allowance.  However, it was maintained that this was an error which only came to light when the Worker sought payment of the allowance. 

The hearing was adjourned to afford the Employer an opportunity to proffer evidence and/or documentation supporting its contention that the off-site meal allowance had been erroneously paid to the Worker’s predecessors.  Notwithstanding assurances that redacted and/or anonymised documentation would suffice it declined to provide any additional evidence and/or documentation on data protection grounds.  It also declined an invitation to provide further information and/or evidence as to what steps had been taken to address any purported error in payment of the off-site meal allowance to the Worker’s predecessors and/or whether repayment of same was being sought.

Conclusions:

I am asked to adjudicate upon the Worker’s entitlement to a subsistence allowance known as ‘an off-site meal allowance’ where it is common-case that same had been paid to his predecessors.  The Worker maintains that he is entitled to same as a matter of custom and practice and hence implied term of his contract whilst the Employer relies upon collective agreements to contend otherwise.

I have considered the respective positions of the Parties including the evidence, submissions and documentation submitted.  It is common-case that the Worker is the only employee occupying his particular position and that his role entails spending a large number of days away from base and access to canteen facilities.  It is also common-case that three of the Worker’s predecessors who commenced employment since the introduction of the collective agreements relied upon herein were paid the off-site meal allowance.  Given that this allowance was paid on foot of claims approved by and in the knowledge of the Employer over a lengthy period of time, I am satisfied that it has been paid to the employee holding this particular position as a matter of custom and practice.  Accordingly, I must conclude that this is an implied term of the Worker’s contract of employment.

Recommendation specific to this Worker and Position:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  Based upon the aforesaid, on the merits of this dispute, I recommend payment of the so-called ‘off-site meal allowance’ by the Employer to the Worker for the days that he qualifies for same.  I further recommend back-payment of the difference in allowances from the commencement of the Worker’s employment within 42 days of the date of this recommendation.  For the avoidance of doubt, I make this recommendation specifically in relation to this Worker and position and it should not be construed as applying to any other position or category of local authority employees.

Dated:   6th December 2021

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Payment of subsistence allowance - collective agreement - custom and practice