Worker

Employer

Anonymised Parties

Psychiatric Nurse

Health Service

Representatives

Mr. Michael Hayes, PNA

Self-Represented

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 - 00001143

06/03/2023

The Worker has been in employed by the Employer for over 40 years. On 6th March 2023, the Worker referred a dispute within the meaning of the present Act to the Commission. Herein, he alleged that the Employer had failed to properly reimburse travel and subsistence expenses. By response, the Employer submitted that all such payments were issued in accordance with the relevant policies in that regard. They further made various preliminary arguments as to the Worker’s  jurisdiction to refer the present dispute.

In the absence of any objection on the part of the Employer, the matter proceeded to hearing. Said hearing was convened for, and finalised on, 18th September 2023.

By submission, and at the outset of the hearing, the Employer raised preliminary arguments as to jurisdiction. Given the nature of the same, these will be considered prior to an examination of the substantive dispute. 

In summary, the Worker submitted that an incorrect rate of subsistence was paid to him over a period of time. In this regard, he submitted that a certain rate of subsistence is paid once he is away from site for a specified period of time. He submitted that the routinely away from his primary site for this duration of time and, as a consequence of the same, is entitled to the enhanced subsistence rate.

Regarding the Employer’s preliminary submission, the position of the Worker was that the dispute relates to his subsistence only and had no relevance to any other employee. In this regard, the Worker’s representative submitted that he the facts of this particular dispute are applicable to the present Worker only and no other party is impacted.

At the outset of the hearing, the Employer submitted that the present matter is both a collective issue and a cost increasing claim. In this regard, they submit that the matter is not appropriate for Adjudication in the present forum.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The present dispute involves a net issue regarding the correct interpretation of a circular in relation to the payment of subsistence rates. The relevant circular provides that a certain rate should be paid once an employee is away from their base for in excess of ten hours. In circumstances whereby the Worker submitted that he was routinely away from his base for this period of time, he submitted that the incorrect subsistence rate was applied, creating a shortfall of some €2,921.50.

With the assistance of his trade union representative, the Worker progressed the matter through the Employer’s grievance procedures. In finding against the Worker, the Employer submitted that their interpretation of the relevant circular differed form the Worker’s. As a consequence of the same, the Worker’s grievance was no upheld and the matter was referred as a trade dispute.

At the hearing in relation to the same, the Employer submitted that the dispute was in fact a collective issue as their interpretation of the circular would have a consequent effect for numerous other employees in the same situation.

In this regard, Section 13(2) of the Act provides that an investigation may occur,

“…where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended.”

In this regard, the Employer has submitted that the present trade dispute involves a rate of pay for a body of workers, and as such is exempt under the terms of Section 13(2). In contesting this application, the Worker’s representative submitted that the facts of the dispute are applicable to the present Worker only, and that each case must be determined in its own merits. While I have considerable sympathy for the Worker’s position in this regard, it is apparent that any recommendation emanating from this dispute would potentially affect a body of Workers. In this regard, the recommendation sought relates not only to the matters particular to the present Worker but will inevitably involve an examination of the Employer’s interpretation of the circular as it relates to all such effected employees.

Having regard to the foregoing, I find that the present matter relates to a collective issue and as a consequence of the same, it would be inappropriate to issues a recommendation in relation to the dispute as referred.

Collective dispute, circular, subsistence