ADJUDICATION OFFICER RECOMMENDATIONS
Adjudication Reference: ADJ-00033160
Parties:
| Worker | Employer |
Anonymised Parties | A healthcare professional | A provider of healthcare |
Representatives | SIPTU | In-house representatives |
Disputes:
Act | Dispute Reference No. | Date of Receipt |
Dispute referred to adjudication by the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act | CA-00043898-001 | 05/05/2021 |
Dispute referred to adjudication by the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act | CA-00047198-001 | 16/11/2021 |
Date of Adjudication Hearing: 15/03/2022
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 5th May and the 16th November 2021, the worker referred disputes to the Workplace Relations Commission pursuant to section 13 of the Industrial Relations Act. They were scheduled for adjudication on the 15th March 2022, and this took place remotely. The worker and his shop steward attended, and they were represented by Dave Curran and Ciaran Sheridan of SIPTU. An in-house representative and a senior manager attended for the employer.
In accordance with section 13 of the Industrial Relations Acts 1969following the referral of the disputes to me by the Director General, I inquired into the disputes and gave the parties an opportunity to be heard by me and to present to me any information relevant to the disputes.
Background:
The dispute relates to the payment to the worker of travel & subsistence between 2014 and 2016 and an on-call allowance. The employer disputes the claims. |
Summary of Worker’s Case:
The worker commenced employment with the employer in 2011 and in 2017 transferred to a named base. On transferring to this base, the worker became aware that colleagues were paid a payment equivalent to two hours of pay if they called out to work outside of their duty hours. The employer told the worker that this was not possible because he was paid from a different payroll system than the colleagues. The worker outlined how he had exhausted the grievance process in respect of this issue. He denied that the colleagues were red-circled. The worker outlined that he only became aware in 2019 of his entitlement to travel & subsistence when travelling more than 45km from his base for relief/locum duties. He had verified this claim and established that he was owed €6,761.22. He exhausted the grievance process in respect of this claim. He did not accept that the Financial Regulations imposed a time limit for submitting a claim. |
Summary of Employer’s Case:
The employer outlined that the travel & subsistence provisions could not be processed as they were too old. Such a claim could not be authenticated as managers moved on. The worker had claimed some travel and subsistence so should have claimed for journeys over 45km. It was suggested that there may be double claims of travel & subsistence. The employer indicated that the worker had not exhausted the grievance process in respect of the on-call payment issue and offered to finalise this. |
Findings and Conclusions:
CA-00043898-001 This dispute relates to the worker’s claim for travel & subsistence for journeys of greater than 45 km from his then base. The worker became aware of this in 2019 and carefully established the amount he could have claimed for travel & subsistence. I am satisfied that the worker has accurately assessed what could have been claimed. I am definitive that there is no basis for any suggestion of a double claim. I see the employer’s point that it is implied in the Regulations that claims be submitted promptly and should only be delayed in exceptional circumstances. I also accept that the worker was not aware of the protocol that travel and subsistence could be claimed in respect of journeys of greater than 45 km. This is not a Payment of Wages claim or a breach of contract claim; it is a dispute pursuant to section 13 of the Industrial Relations Act. The resolution of such disputes seeks to foster fairness in the workplace. This encompasses fair treatment and the provision of information to workers, both which foster workplace harmony. In the circumstances of this case, I recommend that the worker be paid €3,000 arising from the fact that he was not made aware in good time of the 2013 protocol regarding travel and subsistence for journeys of over 45 km. CA-00047198-001 I am satisfied that the worker exhausted the internal grievance process regarding the two hour call out issue, i.e. his letter of the 25th January 2019. This was not processed at Stage 3 and the follow-up SIPTU letter of the 15th February 2020 refers to ‘grievances’, i.e. both disputes addressed here. I accept that there is an agreed arrangement (agreed via the auspices of the LRC) that staff at this base would be paid a two hour call out payment when responding to calls outside of duty hours. The documentation does not support the position that the worker’s colleagues were red-circled. There is no reference to new employees or employees transferring into the base in the documentation. It is obviously a source of unfairness and workplace disharmony if colleagues are treated differently on what is an arbitrary consideration (their pay centre). I, therefore, recommend that the worker be treated the same as his colleagues in the base, i.e. that he receive the two hour call out payment when doing call outside of his duty hours. This element of the claim was not quantified, i.e. the amount of call the worker did. I, therefore, also recommend payment of €500 in respect of delay and the employer not finalising the grievance process. |
Recommendations:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
CA-00043898-001 I recommend that the worker be paid €3,000 arising from the fact that he was not made aware in good time of the 2013 protocol regarding travel and subsistence for journeys of over 45 km. CA-00047198-001 I recommend that the worker be paid the two hour call out payment when doing call outside of his duty hours in line with the local applicable agreement and that he be paid €500 in respect of delay and the employer not finalising his grievance. |
Dated: 22/02/2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Industrial Relations Act / on call / travel & subsistence |