ADJ-00036434

Worker

Employer

Anonymised Parties

An Employee

A Local Authority

Representatives

Pat O Donoghue, SIPTU

Amanda Kane, Local Government Management Agency (LGMA)

Act

Dispute Reference No.

Date of Receipt

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

CA-00047684-001

14/12/2021

The Worker commenced his employment with the Employer in 2004.

He referred his dispute to the Director General of the WRC on 14th December 2021 requesting an appeal of an internal grievance.

SIPTU on behalf of the Worker submits as follows. 

The Worker submits that he is entitled to a subsistence allowance in respect of a period of his employment which had been refused by the Employer. The Worker grounds this grievance on the fact that his colleagues had been in receipt of this allowance which had been denied to him. Furthermore, the Worker submits that the Employer is incorrect in citing a collective agreement which bars the provision of this allowance to new entrants to his position by the application of a cut-off date. The Worker submits that one of his colleagues who had been in receipt of this allowance was also a new entrant within the meaning of this provision.   

Factual background

The Worker was employed as a part time firefighter from 2004 to 2017. From 4th December 2017, he was employed by the Employer in the position of a temporary Wastewater Inspector which subsequently became a permanent position in May 2018. The Worker moved on from this role on the 18th of December 2020.

Shortly after commencing his role as a Wastewater Inspector in December 2017 the Worker had a phone conversation with Ms K of the Employer who discussed the applicable allowances for his role. He was informed that his was entitled to a subsistence allowance as his work required his being away from base due to his covering of the entire county. This was confirmed when he attended at Ms K’s office subsequently to collect the necessary paperwork.

On or about 23rd of February 2018, the Worker again met with Ms K, and he was requested to ‘fill up a subsistence starter form’. He was informed that this claim form would have to be submitted each calendar month. On 17th of April 2018, the Worker again followed up with Ms K seeking an update on his subsistence claim. Finally, in May 2018 the Worker was informed by Ms K that he would only be paid in respect of an eating on site allowance and not the additional subsistence allowance. The Worker protested this and sought for this allowance to be put on hold until the matter was sorted out.

The Worker notified his local union official who contacted the Employer accordingly. The Employer maintained their position that the Worker was not entitled to this allowance. The Worker had informed the Employer that his two named colleagues (Employee 1 and Employee 2) were in receipt of this allowance, but he was excluded. The Employer referenced a policy that new entrants were not entitled to this subsistence allowance and as such he was excluded. This was contested by the Worker on the basis that one of his colleagues was also a new entrant but was in receipt of this allowance.

The matter was escalated, and a Workplace Relations Complaint was submitted in respect of this dispute. There was no objection by the Employer to the matter being referred to adjudication. However, on the eve of the scheduled hearing the Employer had objected by way of their submission to the matter being heard on the basis that the internal grievance procedures were not exhausted. As a consequence, the complaint was withdrawn in advance of this hearing to allow for the internal grievance procedures to be completed as now required by the Employer. The matter progressed through the internal process until an outcome was issued on 30th of November 2021. On foot of this the herein complaint was submitted to the WRC and consented to by the Employer to proceed to adjudication. 

Claim

The substance of the Worker’s claim is that he was entitled to claim a subsistence allowance for the period from 4th of December 2018 to 18th of December 2020. The allowance amounted to €14.01 daily and the Worker calculates his loss for this period to amount to €5267.67. The Worker at all times submitted his claim forms monthly as required by the scheme.

The Worker claims his colleague as a comparator in respect of his claim and submits that this person was in receipt of this allowance at the time of his engagement in this role. The Worker submits that the Employer’s position that he was not entitled to this allowance due to the fact of his being a new entrant is undermined by their paying the same allowance to a fellow new entrant who only took up his role a number of months before the Worker. 

The Worker submits that his claim is not grounded on any previous WRC recommendations in respect of this allowance which concerns the Employer and that this is not a ‘knock-on claim’. The Worker’s case is that taking his colleague as a comparator there exists no objective reason justifying their difference in treatment. He further submits that his fellow new entrant had not been in receipt this allowance he would not have advanced this matter. 

At the hearing, SIPTU argued that the Worker does not rely on the previous Labour Court recommendation. SIPTU asserted that it is not a knock-on claim but a claim that stands on its own merits. SIPTU also argued that the claim is an IR dispute and not a Payment of Wages claim.  SIPTU argued that the Employer does not apply the policy evenly and no explanation was given in relation to the Worker’s colleague who is in receipt of the allowance. It was submitted that this is not an ongoing claim, but time-limited to the Worker’s previous position.

LGMA on behalf of the Employer submits as follows.

Preliminary Issues

The Employer considers this current complaint, as per the WRC Complaint Form, is clearly related to pay and conditions for employees of the Employer in receipt of an eating on site allowance or subsistence allowance and as such, any concession of this claim would have broader implications for the Employer, the Local Authority sector and across the public and civil sector. If the current complaint succeeds it will be used as a precedent for further complaints on the same issue by other staff. On this basis the Employer submits that the Adjudicator is precluded from hearing this complaint as it is a Body of Workers complaint as per S.13(2) of the Industrial Relations Act 1969.

The Employer cites ADJ-0008777, and Shannon Airport Authority v A Worker AD1383 to AD1389 in support of its preliminary objection.

The Employer believes that, given the circumstances, it is not appropriate for the Adjudicator to hear the complaint and it should be dismissed as a Body of Workers claim as per section 13(2) of the Act.

Background

Without prejudice to the Employer’s preliminary submission, the Employer provides the following information in relation to a grievance raised by the Worker.

The Worker was employed as a temporary Wastewater Inspector and was made permanent in this role in May 2018. In December 2020, the Worker moved on from this role.

On 25th June 2021, the Worker raised a grievance with the Employer regarding his entitlement to be paid a subsistence allowance instead of the eating on site allowance in respect of his previous role as a Wastewater Inspector not his existing role.

A grievance meeting was held with the Worker on 5th August 2021 by the Executive Engineer who was the Worker’s manager when he worked in the Wastewater section. He issued his determination on the issue on 1st October 2021 which found that the Worker had no entitlement to the subsistence allowance but that he did have an entitlement to the eating on site allowance which had been paid to him.

On 3rd November 2021, the Worker’s union representative submitted an appeal of the Executive Engineer’s decision to the Senior Executive Engineer on behalf of the Worker.

The Senior Executive Engineer considered the grounds of the appeal and issued his decision to the Worker’s union representative on 30th November 2021. The original decision was upheld.

The Worker submitted a complaint form to the WRC on 14th December 2021.

The Employer’s position

The Worker is appealing the outcome of an internal grievance in 2021 which was managed appropriately in accordance with the Employer’s Grievance policy.

It is the Employer’s position that the Worker has been in receipt of the correct allowance i.e., the eating on site allowance for the duration of his role as a Wastewater Inspector with the Employer i.e., December 2017 until December 2020.

In that regard, the Employer relies on the November 1987 Eating-on-Site Allowance Agreement. This agreement has been in place since 1987 and states:

“New employees will only be entitled to the eating-on-site allowance. “

The Worker is encompassed by the term “New Employee” in relation to the Agreement as he commenced after the agreement was in place and as such is only be entitled to the eating on site allowance.

Given that the grievance submitted by the Worker is that he was entitled to be paid the subsistence allowance, the Worker may seek to rely on a Labour Court recommendation (details were provided at the hearing) which was a claim by SIPTU that the subsistence allowance be paid to 3 staff in the Employer. This issue arose in early 2017 and a conciliation conference was held under the auspices of the WRC in May 2017. As agreement was not reached, further conciliations took place in March 2018 and April 2019. As no agreement was reached, it was referred to the WRC and finally to the Labour Court in November 2019. The Labour Court recommended in favour of the Workers stating:

“The Court recommends reinstatement of the Subsistence Allowance, with retrospection, to the Workers who had been in receipt of it from their respective date of appointment as Community Wardens until 23 April 2018. The Court further recommends the payment of the Subsistence Allowance with retrospection to the date of her appointment to the third Worker.

This Recommendation is strictly confined to the three Workers on whose behalf the within dispute was referred to the Court and is not to be regarded as setting any precedent for future claims.”

Because of the significant implications arising from the recommendation and its use as possible precedence the Employer advised SIPTU that it could not proceed to implement the recommendation and there was no obligation for it to do so. In response SIPTU confirmed to the Employer on 5th February 2020, in relation to that determination, that

“Further to our earlier discussion, I wish to clarify that SIPTU, in keeping with the recent Labour Court decision concerning the Wardens, are not pursuing any knock on claims arising from same. Our Shop Stewards, representatives and members concerned have been advised accordingly,”

Any pursuit by the Union to use the ‘red-circled” recommendation in this case represents a knock-on claim and is contradictory to the email from the SIPTU sectoral representative and also to the Labour Court’s own recommendation which explicitly addressed its use in further claims.

The Worker commenced in his role as a Wastewater Inspector after the initial claims were raised in 2017. The Employer had clearly indicated to the Union in May 2017, prior to the commencement of the Worker, that the subsistence allowance was incorrectly being paid to a small number of staff and that it was its intention to cease payment to all staff. The Employer accepted the recommendation of the Labour Court on the basis that it was red-circled to the existing employees and based on confirmation from the unions that there would be no further claims regarding the issue. Yet it is now faced with an identical claim from the union for another employee who worked in another section within the Employer.

For clarity, it should be noted that the Worker no longer works in this section and moved to an alternative role in December 2020.

It is the Employer’s position that the Union cannot seek to expand the applicability of an allowance within the Local Authority sector or wider public service through an individual case in the full knowledge that it will give rise to further “knock-on” claims and have significant cost implications across the Employer, local authority sector and wider public service. This would also represent a breach of the Public Service Agreement which prohibits cost increasing claims. Any assurance from the union that it would be “limited” in its application cannot be accepted given that this assurance was previously given by the union and is now being disregarded.

Conclusion

The Employer believes this issue concerns a body of workers and therefore cannot be heard under Section 13 of the Industrial Relations Act where any recommendation has significant implications to the wider Local Authority and public service.

The Employer believes that SIPTU have breached the undertaking which it previously gave not to pursue any knock-on claims arising from a red-circled recommendation. The Employer acted in good faith and implemented the Labour Court recommendation but believe that they are no longer bound by this decision and will move to address this.

At the hearing, the Employer argued that this is a historic claim and should have been submitted under the Payment of Wages Act. However, due to the time limits applicable, it was submitted under the Industrial Relations Act.

Furthermore, it was argued that while SIPTU draws distinction between the Labour Court recommendation cited, it relies on the same set of facts.

I have considered the respective positions of the parties. 

I note that the matter of erroneously paid allowances has been under review by the Employer since approximately May 2017. This recommendation should not be read in any way as interfering with this process. The recommendation pertains strictly to the circumstances of the within dispute. 

I note that at the commencement of his employment as a Wastewater Inspector, the Worker was informed that he would be in receipt of the subsistence allowance. At the time, he was required to complete relevant forms and instructed as to the process for claiming subsistence allowance. Some 5 months later, the Worker was informed that he would be entitled to an eating on site allowance and not the subsistence allowance. 

I note the Worker’s assertion that he was the only employee in the team of three employees who did not receive the subsistence payment. Reliance was placed by the Employer upon the 1987 Eating-on-Site Allowance Agreement to contend that the Worker was a ‘new employee’ and hence the applicable section dealing with allowances applied as follows: “New employees will only be entitled to the eating-on-site allowance.” However, the Worker asserted that a named colleague who, like him, was a new entrant was, and remains in receipt of the subsistence payment. While the Respondent did not confirm that this is the case, it did not deny it. It was maintained that erroneous allowances payments came to light in May 2017 and the Employer is currently reviewing the matter. 

I am satisfied that the subsistence allowance has been paid to the employees holding this particular position as a matter of custom and practice. While I am cognisant of the Employer’s view that it has been paid in error to some members of staff, which came to light in May 2017, it appears that the same erroneous payment was confirmed to the Complainant in December 2017 and in February 2018. In line with the custom and practice, at the commencement of his employment in this position, and until May 2018, the Worker was clearly advised that he would be in receipt of the subsistence allowance.

I recommend that the Employer pays the Worker €5,000 in compensation for the full period of employment as a Wastewater Inspector (i.e., 4th December 2017 – 18th December 2020) as full and final settlement. 

For the avoidance of doubt, I make this recommendation specifically in relation to the exceptional circumstances of this dispute and it should not be construed as applying to any other position or category of local authority employees and should not be taken to have a wider implication.

Subsistence allowance – eating on site allowance-