Worker

Employer

Anonymised Parties

A Worker

A Local Authority

Representatives

Tony Martin forsa Trade Union

Eamonn Hunt, 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

IR - SC - 00000688

19/09/2022

The Worker is seeking payment of an on-call allowance on the basis that he is operating an on-call arrangement in his role since 2014. The Employer disputes that he is an on-call employee.

The Worker was appointed Landfill Manager for Landfill A in 2014.  In July 2016, he was appointed Landfill Manager for another landfill site, Landfill B. It is the duty of the Landfill Manager to ensure that flares on both sites are operating every day of the year.  Any occurrence of non-operation is treated as an incident and must be reported to the EPA (Environmental Protection Agency).   

The Worker, in his capacity as the Landfill Manager, receives four text messages every day of the year alerting him that the flares on both sites are operating normally.  However, if the text messages are not received for any reason, this indicates non-performance of the flares and the Worker is required to investigate because the failure to act on these text messages would result in a breach of the Employer’s licence from the EPA to operate landfill sites.     

Given that he is required to attend the sites to deal with the non - operation of flares, he is entitled to an on-call allowance.                   

The Employer accepted that the Worker is in receipt of automated text messages advising him of the operation of flares at the two landfill sites he manages. They also highlighted however that there is no requirement for the Worker to visit either site in the event of him not receiving a text message and that any actions required because of the non-performance of the flares can be carried out during normal working hours the following working day.

The Employer also highlighted that when the Worker decides to attend either of the sites outside of his normal working hours, he is entitled to claim time off in lieu (TOIL) for attendance and travelling expenses.

The Employer also stated that if the Worker does not wish to receive the automated texts advising him of the operation of flares outside of normal working hours, he is entitled to switch off his mobile phone.

I find in the first instance, on the balance of probabilities, that, contrary to the assertion of the Worker, the Employer has no requirement for an on-call response and that any actions arising from the non-performance of the flares can be carried out by the Worker during normal working hours the following working day.

As there is no requirement to attend either landfill site in the event of the non-performance of the flares, and the Worker chooses whether or not to visit the sites, he cannot therefore be considered to be an on-call worker. Accordingly, the question of an on-call payment cannot possibly arise.