Worker

Employer

Anonymised Parties

Bus Driver

Bus Company

Representatives

Thomas O'Connor, National Bus and Rail Union

Senior Employee Relations Manager

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001481

23/06/2023

The worker is a professional bus driver.  The employer has an agreement in place whereby a temporary vacancy is filled following applications from the most senior spare driver who then covers the position until the original driver resumes duty.  The worker believes that the rostering arrangements in place would place him over the maximum allowable legal limits and he did not work on days that he considered would push him over the limit.  The employer did not pay the worker for the hours he did not work the assigned duty.  The worker further believes that the employer has disregarded his grievances and abandoned the agreed procedures.

The worker has been employed as a professional bus driver with the employer since 2005. He works four days per week and does a 39-hour week.

The worker’s representative submits that the worker is a professional driver, and he has a duty to ensure that his working hours comply with the maximum permitted.   The employer is using a 26-week averaging period and as there is no agreement in place for this then the default position is 17 weeks according to the legislation.

The worker has a loss of earnings due to the employer’s failure to pay him.  The total amount to the worker is €1,399.83.

The worker is assigned to a Route (Route A) since June 2018 covering for a colleague who is on long-term sick leave.   The worker will fill that position until his colleague resumes duty.    The agreement that deals with that duty states: “Spare drivers providing long term relief cover on these 4-day rosters will work the following days as their 5th days’ work” and in the worker’s case this was designated as Tuesday.  The worker only wanted to operate 4-days per week and this position was upheld by his trade union based on the national agreements in place.  The worker worked under protest. It was submitted on behalf of the worker that the minimum payment for a day’s work is 7 hours and 48 minutes, and drivers will be paid a minimum of 39 hours.  This is the subject of a national agreement.  The issue for the worker is why did the employer only pay the worker for one fifth of day that he was working under protest and the agreements state that he should adopt the rest days of the duty which pertains to the colleague on long-term sick leave.

The worker submitted three grievances in February 2023, and these were not acknowledged or responded to by the employer.  A further grievance submitted in March 2023 was also not responded to. It was submitted on behalf of the worker that these are “Stage C” grievances and under the agreed grievance procedure grievances of this nature should be acknowledged within 9 days.   It was submitted on behalf of the worker that he tried to work within the agreed procedures, but the employer ignored these.  It was submitted on behalf of the worker that while other rostering arrangements in relation to spare drivers has been resolved all of the workers grievances continue to be ignored.  The employer is obligated to follow the agreed procedures which state that for a “Stage C Referral”: “An oral hearing shall take place within 5 working days or on a date mutually agreed by the parties concerned and the decision given not later than 4 working days thereafter”.

The worker’s representative acknowledges that delays can occur but not of the magnitude of 9 months for three of the grievances and 8 months for another grievance.  The worker’s representative refers to the Code of Practice, S.I. 146/2000 which provides that “grievances are handled in accordance with the principles of natural justice and fairness”.  This did not happen for the worker in this case.  The worker is seeking to have the loss of wages paid and compensation for the failure to deal with his grievances in a fair and timely manner.

The worker is a professional bus driver who has been employed since 2005.  In June 2018 he was assigned to fill a temporary vacancy which arose due to the long-term sick leave of a colleague.  The position was filled in line with the provisions of a 2000 agreement.

The employer concluded an agreement in October 2021 with the trade unions in relation to various working arrangements in the area where the worker works (Depot 1).  Part of that agreement related to the cover arrangements for various routes including Route A where the worker is currently assigned. This agreement stated that “spare drivers providing long-relief cover on these 4-day rosters will work the following days as their 5th Day work” and in relation to Route A this was noted as Tuesday.  This agreement was signed off by the various stakeholders including local trade union representatives.

When the worker took over Route A this was a full-time duty, i.e., 5 days per week.  At that time the paid time on this duty was 08.48 per day which was equivalent to 44.05 minutes per week.  The worker continued to operate this duty until November 2019.

In December 2019 there were a number of enhancements to the service on Route A and this resulted in a longer working day.  The worker regularly worked in excess of 50 hours per week as a result of this.

In late 2021 the employer entered into negotiations with the trade unions in relation to a full review of Depot 1.  This concluded in October 2021 and as a part of this agreement a number of duties were identified to qualify for a 4-day working week, one of which was Route A.  That agreement stated: that “spare drivers providing long-relief cover on these 4-day rosters will work the following days as their 5th Day work” and in relation to Route A this was noted as Tuesday. 

As a result of this agreement all duties in Depot 1 were readvertised and the worker applied for and was assigned to continue working Route A in the full knowledge that the terms of the October 2021 agreement applied to Route A.  The worker continues to be assigned to this route.

On 30/11/2021 the worker advised his Depot Supervisor that he would only operate part of his rostered duty every Tuesday.  At a subsequent meeting he was advised that the employer’s rostering system did not show any warnings in relation to working time infringements.  It was explained to the worker that the 48-hour reference period was based on a weekly average over a 26-week period.

The worker continued to report for duty and for the next 13 months he would inform the supervisor on Tuesday what time he would finish at, and he would not operate the full duty for that day.  If the worker was rostered for a non-driving duty he would not finish early.  The employer paid the worker for the days he worked a full day, and his pay was adjusted for days that he did not complete his full duty. On those days his duty had to be undertaken by another driver and who had to be paid accordingly.

The employer also notes that there were occasions during the period November 2021 to January 2023 when the worker was overpaid as the manual correction was not entered on the system. 

The employer concluded a further agreement in 2023 in relation to the arrangement for spare drivers covering a 4 over 7 roster and this matter will not arise again.

The employer believes that the worker was paid correctly for every day and every hour that he worked.  The money that he believes is due to him arises from the fact that he did not work or make himself available for work and his pay was adjusted accordingly.  The worker was made aware of this on many occasions.  The employer is also confident that the arrangements in place for the worker on Route A were in line with the agreement in place for this duty.

In conducting my investigation, I have taken into account all relevant submissions and documents presented to me by the parties.   This is a trade dispute referred by the Worker under section 13 of the Industrial Relations Act, 1969.  By way of clarification there are no complaints under any employment rights statute or any matter of law before me in this referral. At the hearing the Adjudication Officer clarified that this is a voluntary process and there is no formal evidence taken, and no witness evidence. In that context there are no findings of fact made.

The role of an Adjudicator in relation to disputes of this nature is to make a recommendation to try and resolve this dispute.  The substance of this dispute involves two core issues: 

·        Firstly, the worker did not work the assigned duty in accordance with the local agreement and consequently was not paid by the employer for the hours he did not work

·        Secondly, the worker raised four grievances in relation to these matters and the employer did not process these grievances in line with the agreed procedures. 

Some of the other issues are aligned to these two disputes are: 

·        The employer has overpaid the worker because of a failure to make manual interventions on the roster system. 

·        There have been a few subsequent agreements to the spare driver arrangements and the latest one has set the requirement whereby spare drivers providing long-term relief cover would work on a set day at naught.  This means that this situation is unlikely to arise again. 

·        In addition to these matters there is the further matter whereby a local agreement was reached, and the trade union believes that this was not aligned to the overarching national agreement.  

The worker’s representative confirmed that the workers grievances and all associated matters are contained in the referral of this dispute to the WRC.

In framing my recommendation, I accept that the worker is not entitled to be paid for the hours not worked and the employer was relying on an agreement that applied to three routes.  The worker was the only driver to adopt the position.  I do not recommend that he receive any payment as a result of his action.

The worker is entitled to have his grievances heard and responded to in a reasonable timeframe.  I believe that the failure to do so has resulted in the referral of this dispute to the WRC. I am recommending that the employer pay the worker the sum of €500.00 for the failure to investigate his grievance in a timely manner and I am also recommending that the employer does not seek to recoup the overpayment of approximately €605.00 as a signal of goodwill and with the aspiration of bringing this dispute to a conclusion.

Local agreement. Roster dispute.