Worker

Employer

Anonymised Parties

A Public Servant

A Public Service

Representatives

ESA Consultants

Internal representative

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-00040331-001

08/10/2020

This dispute is from a worker whose employment falls within the ambit of the Industrial Relations Act 1969 following the enactment of the Industrial Relations (Amendment) Act, 2019. The disputes relates to how a premium for unsocial hours worked is incorporated into pay for an injury on duty. The worker said that she was owed €686.20.

The worker outlined that she was a close contact at work of a person who contracted Covid-19. This counted as an injury on duty, but the pay she received did not incorporate premium pay for unsocial hours. Prior to her current role, the worker previously worked in a training role, which did not involve unsocial hours. It was this period used to calculate her premium entitlement, even though the worker currently worked unsocial hours.

The worker outlined her efforts to pursue this issue between May and August 2020. She completed an A85 form on the 8th June and the payment was made in July 2020, although not in full. She outlined that she went through the procedures and acknowledged that she had not completed the ERB1 form.

The employer acknowledged that the worker was due pay for injury at work and that this should include a premium for unsocial hours. While it did not agree with the precise amount stated by the worker, it outlined that this was an issue affecting about 180 members. It hoped to resolve the issue.

The respondent outlined that a recommendation should not be made in this case as the worker had not completed the internal process. It acknowledged that the worker had raised it locally (for example, by submitting the A85 form), but she had not submitted the required ERB1 form. It outlined that under the agreed procedures, all personnel who had an individual grievance must comply with a four-stage procedure, going through the various levels leading to a decision, which can then be referred to the WRC. The respondent outlined that Directive 3/20 was disseminated to all members in January 2020, which stated that internal procedures had to be exhausted.

It was not disputed in this case that the worker was entitled to have unsocial hours encompassed in pay while she was injured on duty. The issue is the reference period for calculating the unsocial hours worked and this being an annual payment made in July. There was some debate over the exact amount owed to the worker.

The Industrial Relations (Amendment) Act, 2019 allowed workers of this employer access to the industrial relations machinery of the State, namely the Workplace Relations Commission and the Labour Court. This accompanied the development of an internal dispute resolution mechanism, to be accessed prior to the referral of a dispute to the Workplace Relations Commission.

The employer is aware of the issue and accepts the worker’s entitlement to have unsocial hours worked encompassed in the pay for injury at work paid in July 2020. The worker is not the only member involved. The employer stated that it hoped to resolve the issue.

I accept that the worker took many steps to raise her entitlement to this payment. She did not, however, complete the specific process established within the employer prior to the referral of a dispute to the Workplace Relations Commission. This includes, for example, submitting an ERB1 form. I accept that submitting this form and availing of this process may not have come to mind and that it is new.

Recommendations issued pursuant to the Industrial Relations Act are not legally enforceable but are important problem-solving mechanisms. Generally, a worker is expected to exhaust any internal procedure (for example, a grievance procedure) prior to referring the dispute to the Workplace Relations Commission. In the case of this employer, there is a specific process, set out in writing.

While I note the submissions of the parties, I have decided that it is preferable not to issue a recommendation in respect of this dispute referral. This is because the specific internal procedure was not availed of and in the context of the Industrial Relations (Amendment) Act and this being a voluntarist process, this specific internal procedure should be engaged prior to submitting the dispute to the Workplace Relations Commission. 

It is always open for the worker to submit a new dispute, having engaged the process, should the issue not be resolved.

For clarity, I have not addressed any of the substantive arguments presented by the parties to this dispute.

For the above reasons, I do not issue a recommendation in respect of this dispute.

Industrial Relations (Amendment) Act 2019 / Exhaust internal procedure / ERB1