Complainant

Respondent

Anonymised Parties

A Social Care Worker

A State Agency

Representatives

Chris Harrison Fórsa

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-00039720-001

10/09/2020

The Worker currently receives time off in lieu when he is required to work on night shifts. He   believes however that the option of time off in lieu or overtime rates should be given to him as this is offered to staff in another geographical area where the Employer operates. He is seeking full parity with the other geographical area as well as a retrospective element.

The Worker has been employed since 1996 as a Social Care Worker in a particular geographical area.

On 31st of December 2018, he had to respond to a crisis situation involving a client when he was rostered to be on a sleepover shift. While he was paid as normal for the period he was on the sleepover, he only received time off in lieu in respect of the time that he was dealing with the crisis.

He subsequently learned that workers in a different geographical area are given the option of time in lieu or a paid overtime rate, after midnight, if they are required to work during a sleepover shift.

He is claiming that in the other geographical area, the overtime option is paid, after midnight, at the following rates:

·       Midweek: Time and 1 quarter for the first 4 hours and Time and 1 half thereafter.

·       Saturday: Time and 1 half for the first 4 hours and Double time thereafter.

·       Sunday: Double Time.

He is of the view that similar options i.e. the option of time in lieu or the below overtime rate, should be afforded to him also.

He has exhausted all local avenues prior to presenting at the WRC.

The Employer said that as part of his contracted duties, the Worker is required to perform a “sleepover” duty in respect of which an allowance of €81.60 is paid. This “sleepover” involves him performing so-called “live” duties until midnight, sleeping in the unit until 7am and then returning to live duty until the end of his shift.

In some circumstances however, such as where the normal routine of the residential unit is disrupted, it is not possible for the staff performing the sleepover duty to retire at midnight. In others, staff who have retired for the night may have to come back on “live” duty for a period of time.

The Employer recognises that while the payment of the allowance is recognition that uninterrupted rest/sleep cannot be guaranteed, a system needs to be in place to recognise staff who find themselves in this situation. In the Worker’s geographical area, the system in place sees the worker involved awarded time off in lieu for the period of time their rest/sleep is interrupted.

The Employer also asserted that the Worker’s claim to be paid “overtime rates” for the significant disruption of his sleepover duty on the day in question is based on his understanding of how such occurrences are dealt with in another geographical region.

The Employer highlighted that there is no one single method within the agency for dealing with this situation as this aspect of the work is the subject of several historical arrangements across the various regions in which it operates e.g. Night time rosters, On-Call arrangements, disruption of sleepover duties.

In making my recommendation on this matter, I must recognise in the first instance that differing historical arrangements surrounding the terms and conditions of employees exist across the geographical areas in which the Employer operates. Given the nature of these arrangements, the application of some of the terms and conditions contained therein vary, depending on the areas in which the workers find themselves and on the nature of their work arrangements. Workers cannot however realistically expect to cherry pick some of the terms and conditions that may be more favourable in a different area and retain those that they prefer in their own area given the industrial relations chaos that would inevitably ensue.

While it would be ideal if such arrangements were streamlined across the organisation, I recognise that both the Employer and the representative trade union are making efforts to achieve this objective and ensure full implementation of the 2017 European Working Time Directive (EWTD) Roster Agreement entered into between them. Specifically, this agreement provides for the transition of all night-time working arrangements across all residential services to a “live night” service and would see the elimination of sleepovers in their entirety, thereby eliminating disputes such as the one now before me.  

While I encourage both the Employer and the union to conclude their discussions surrounding the full implementation of the agreement at the earliest opportunity, I also consider that the Worker in the instant case is fairly treated and remunerated for any work that he currently does while on sleepover and that the Employer cannot reasonably be expected to apply the terms and conditions of a different area to him in respect of such work.

I find that the complaint is not well founded for the reasons set out above and I recommend accordingly.

Different overtime payments;