Complainant

Respondent

Anonymised Parties

A Security Guard

A Security Company

Representatives

  N/A

Conor O'Gorman, IBEC

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-00040931-001

12/11/2020

The Worker is alleging that some of his co-workers have agreed to changes in their terms and conditions of employment whereby they are now being paid a flat rate for any overtime worked instead of receiving a premium as they previously had. He asserts that this has disadvantaged him because he has not agreed to a similar change and his overtime has been reduced as a result.

·       The Worker asserted that his colleagues signed a document relinquishing their right to overtime pay and were thereafter awarded extra hours at a flat rate.

·       He stated that when he inquired if there were any extra shifts, he was informed that he would have to give up his overtime entitlement.

·       Specifically, the Worker alleges that he is not in receipt of any overtime while his colleagues regularly get over 50 and 60 hours per week. He further alleged that some workers are on occasion allocated over 70 hours per week which he asserts is in breach of the Working Time Act.

·       He is claiming that this alleged differential treatment is causing him stress and anxiety and added that he is aggrieved by the unfair way he is being treated.

·       He stated that this alleged malpractice has the potential to spread to other companies/industries and result in more grievances and complaints being made.

·       He also highlighted that unfair procedures were applied in respect of the management of his grievance because the party who was initially tasked with investigating his complaint was complicit in the alleged wrongdoing

·       The Worker stated that he is looking for a level playing field and a fairer system for the allocation of overtime whereby workers get paid overtime irrespective of what document they were allegedly encouraged to sign.

·       He is also seeking reinstatement of his full-time hours and a payment for loss of potential earnings.

·       The Employer stated that the Worker is employed on a 39 hour per week contract and has never worked anything other than a 39 hour per week contract.

·       It was also highlighted that some workers, who have joined the company via TUPE have contracts for more than 39 hours, others for less and that some include overtime premium while others do not.

·       The Employer also alleged that notwithstanding the Worker’s contractual terms, he has on occasion been offered additional hours.

·       It was also noted that no detail was provided by the Worker to support a claim for loss of earnings.

·       The Employer stated that numerous attempts were made to resolve the Worker’s concerns and highlighted that additional hours were allocated to him following his grievance.

·       The Employer stated that the Worker will continue to receive his full time hours and that additional hours may be provided if he chooses to accept them.

On investigation into this matter, I note that the Employer has implemented changes in the payment of overtime whereby a number of employees have agreed to be paid a flat rate in respect of overtime they work. I find that both the Employer and the employees are entitled to make such changes and note that, notwithstanding the Worker’s assertions, no direct evidence was presented to suggest that any of his colleagues were coerced into doing so. 

I also note that the Worker agreed, during the hearing, that he was paid overtime on occasion, despite the assertions to the contrary in his written submission, although I recognise that this may have been less than what his colleagues received.

While I note the stress that the Worker says this matter has caused him, he must accept that there is no right to overtime, contractual or otherwise, and that is at the Employer’s discretion to allocate overtime in the same way that it is the Worker’s right to refuse to work such additional hours.  

I cannot make a Recommendation that is favourable to the Worker for the reasons set out above.

Allocation of overtime