Complainant

Respondent

Parties

Michael Gerard Gilmartin

An Post

Complainant

Respondent

Anonymised Parties

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Representatives

Self

John McCormack An Post

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062618-001

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062618-002

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00062618-003

03/04/2024

For the purposes of these complaints, the Complainant is a postal operative with An Post since 2002 in the Ballina sub office area, based in one location.

The Complaint under the Payments of Wages Act 1991 is based on claims for overtime submitted  by the Complainant for work completed, since 2018, mainly over the  Christmas period.

The Complaint under the Employment Equality Act 1998 as amended, is in respect of claims of discrimination through less favorable treatment compared to other workers on a range of issues, citing the protected ground of civil status.

Payment of Wages Act 1991

The Complainant explained that he was trying to get this issue addressed since around 2006. Detail of the amount of overtime which he considers was worked and unpaid over the period of the complaint was provided by the Complainant  on the morning of the hearing. It gave the week in which the shortfall occurred by setting out the number of hours which the Complainant contends were unpaid but which ought to have been paid to him. The Complainant explained that he would be expecting to be paid a certain amount of overtime for a particular pay period. However, he  would not know until he received his payslip what he was actually going to be paid and this resulted in the series of shortfalls as he has claimed. Having read the Respondent’s submission on the matter of time limits the Complainant’s response is that this was not an issue he had only raised in April 2024 but rather that he had been pursuing this issue in correspondence with various people since 2006. He had written to the Ombudsman, two different CEOs, a Government Department, HR in Galway, and on one occasion in 2021 his case was to have been addressed by the WRC but there were some procedural issues around that and a mix up in names for the purposes of the complaint.

In response to the Respondent witness, the Complainant stated that there were other means of tracking or checking his movements and therefore his hours worked to verify his claims.

Employment Equality Act Complaint of Discrimination on Grounds of Civil Status

In his complaint form the Complainant listed a series of 17 items of grievance which he had also explained in a submission on the 18th of June 2024. From that later submission these issues were grouped together under headings of the following items:

Testing of routes

Advanced driving and updating

Conditions at Bonniconlon Sorting Office

Not allowed he same choices as colleagues received during Covid

Carry forward of holidays

Starting times and delivering of mail; publicity post and election mail; washing of vans and check wheel pressure

Safety boots not being provided  plus not suitable for ice and snow

In addition, from the complaint form the following additional items were set out: choice of footwear (5); parcels weighing up to 28kg trying to bring through a standard house door (7); courtesy van given at Christmas to relief helper whereas he had to use his own car (8); required to train a person for three weeks including not being paid for training him up (9).the vehicle that he was required to use for his work (10); repeated testing of his route compared to others whose routes were not tested in 20 years (11); changing of his route to 430 houses compared to a colleague who was reduced without a test to 280 houses (12); the allocation of new houses opposite the Post Office to his route rather than the route of a driver who passes those houses twice a day on an earlier finish (13); not being allowed into Ballina Sorting Office to collect mail (14); no Christmas help compared to other delivery staff (16); a mess made of his wages during polling cards delivery which resulted in an overpayment to him for which he is still being deducted and is not sorted (and these deductions were taken from his sick pay leaving him with little or no wages) (17); not being allowed to wear his own protective footwear when those supplied by the Respondent were not suitable.

The Complainant elaborated on each of the 17 items at the hearing. At the conclusion of his description and clarification of each point he was asked to explain the basis of a complaint of discrimination based on civil status and to identify a comparable person. Regarding the comparable person he cited different employees. A colleague  whom he felt was treated more favourably than he was in respect of each element of his complaint was referenced. The complaints covered almost a 20-year period. At the beginning of his evidence the Complainant was asked to clarify his understanding of the term “civil status” to which he replied with a Dictionary definition of that term. At the conclusion of his evidence in respect of the complaint I put it to the Complainant that I had listened to each part of his complaint to understand whether any part of it could be said to be based on the actual definition of Equal Status Act as it applies for the purposes of the Employment Equality Act. To that end I read to the Complainant the definition of the civil status ground provided by the Human Rights Commission which is consistent with that definition within the Act itself as follows:

““civil status” is defined as being single, married, separated or divorced, widowed, in a civil partnership or being a former civil partner in a civil partnership that has ended by death or, been dissolved.”

I put it to the Complainant that none of the issues which he raised fell within the category of civil status as defined under the Employment Equality Act. The Complainant agreed noting however that he could not understand why there was one definition of the term civil status in the dictionary and an entirely different definition of the term applied by the WRC. In response I explained to him that the terms used were derived from European legislation as applied in national legislation and the role of the Adjudication Officer is to interpret, apply and have regard to both.

Payment of Wages Act 1991

An Post referred to the dates set out on the complaint form where the Complainant had phrased his complaint as “Loss of overtime mostly every Christmas since 2018”. It is the position of An Post that these are out of time and the WRC does not have jurisdiction to hear them, relying on the High Court in HSE v McDermott [2014] IEHC 331. Aside from the time limit issue, the representative stated that the evidence of the manager would show that these claims had been checked by him and they were satisfied that any valid payments due to the Complainant had been made. An Post confirmed that there is a collective agreement regarding the payment of overtime for extra attendance. In addition, there is an overtime agreement reached with the trade union each year in respect of Christmas working arrangements where additional payments are made on the basis of that agreement.

Witness Darren Flynn

Mr Flynn explained that he is the manager in the Ballina area with overall responsibility for the suboffices including Bonniconlon. He explained that each postman or woman has one designated route. He is in that position for two years and stated that he had conducted a check of the claims made by Mr Gilmartin. The witness outlined the means used for calculating overtime for postal workers as follows. Each week the individual completes a timesheet which is then sent directly to Cork. The claims are then sent to him as a manager on a Wednesday and he checks those claims against the system particularly one which he referred to as ABPI and this system allows for an assessment of postal deliveries in real time. He would also make a judgment on the timelines based on the work to be done and the volume of work in each area and the expected time required to complete that volume of work. In the case of the Complainant, he noted that the volume of work had dropped, and he referred to long breaks occurring. Asked about Christmas, he said that each year there is a standard agreement on overtime agreed with the CWU and this is the level of overtime that will be paid to cover any additional hours allowing for some exceptions, for example if there was an emergency, difficulties with weather, breakdowns, etc. There was some dispute between the witness and the Complainant as to whether the former had in fact returned calls that the Complainant had made in around Christmas regarding overtime working. In response to the Chair the witness advised that it was not the practice that if there was a difference between what he approved for payment versus the original timesheet that difference and the intention to pay on the basis of the lesser amount was notified to an individual worker other than when they received their payslip.

On this point Mr McCormack suggested in a question to the witness that the situation was one where overtime was authorised in advance and therefore excess overtime could not be paid without approval. The witness replied no, this was not a case of pre-approved overtime being checked.

In his response to this witness evidence, the Complainant stated that there are two forms of tracking his work. One is placed on the van, and another is in the form of the handheld machine which can indicate when post is delivered and so it was possible for him to verify exactly how many hours were worked.

Employment Equality Act Summary of Respondent’s Position

The Respondent pointed to the timeline of many of the issues raised by the Complainant as being well outside any possible time limit contained in the Employment Equality Act and that none of the issues raised and described fall within the definition of the civil status ground under the Act.

Payment of Wages Act 1991

At the hearing the concept of the cognisable period was explained to the Complainant in that the first issue to be decided is what cognisable period applies to any complaint under the Payment of Wages Act and that is in effect six months. On this basis while the Respondent had indicated that the complaint was completely out of time based on the details provided by the Complainant, the breakdown of the figures which he provided at the hearing would bring into scope within the cognisable period two dates in 2023. The Respondent is correct in stating that any claims outside of a six-month period commencing on the 4th of October 2023 would be outside of the cognisable period as provided for in section 41 of the Workplace Relations Act 1991

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The fact that the Complainant was engaged in representations regarding the same issue at any time during the previous twelve months does not change the cognisable period or indeed provide a basis for extending to the absolute time limit of twelve months. The overwhelming majority of the alleged payments withheld fall far outside even the most generous definition of the cognisable periods allowed by the legislation.

While the full list of dates was not provided by the Complainant until the morning of the hearing, I indicated that I would deal with the complaint in its totality encompassing the dates provided which fall into the cognisable period i.e., December 2023. This leaves a total of 3.5 hours to be considered as to whether those hours were properly payable by the employer. The term properly payable is the one used by the WRC and other bodies to determine if an amount was due to the employee in question in the first instance. If an amount claimed is found not to be properly payable, then a complaint of an unlawful deduction or payment withheld cannot succeed.

 The system in place in An Post for determining the working hours of the postal worker is as I observed at the hearing somewhat unusual in my experience. A worker completes a timesheet which is one of the methods of recording hours of work under the Organisation of Working Time Act and makes a return on the timesheet. Subsequently the local manager checks the timesheet versus, largely, his knowledge and information regarding the route worked and then determines what he considers to be the appropriate number of hours to be paid over and above the standard working hours of 39 per week. He can also check a system to show the breaks between working hours to arrive a total hours worked or which he considers should have been required to complete the schedule for the day. There may also be some conflict between an additional claim for overtime over and above the amount agreed with An Post with the trade union each year.

Once the area manager completes his check, he signs off on the actual amount of overtime to be paid to the employee, including none at all. There is then no discussion with an employee as to whether they accept or reject the manager’s calculation. No basis for a recalculation is provided to the worker and then the worker learns of their gross and net pay inclusive of overtime when they receive a payslip.  As the Complainant stated the payslip for the period of the claim is already two weeks in arrears by the time it is received because of the manner in which the payroll operates. This however is not an onerous imposition on the employee ,as the overtime claimed is for a fixed period and not an repeated issue in each period or on a frequent basis.

On the substance of the issue, while it is not, as suggested or understood  by the Respondent representative,  a case of correcting approved overtime in any formal meaning of that term within the workplace, the system for claiming overtime by a postal worker has evidently built up over many years and operated accordingly. That is to say, the worker claims his hours of work and the Respondent decides how many hours in excess of normal working hours are justified for the work done, if any. Whether this would stand up to scrutiny in terms of how hours of work are recorded for the purposes for example of the Organisation of Working Time Act is another matter. What is clear is that the system of determination is one which is not in dispute at national level and stems from the operation of a memorandum agreed between the trade unions and An Post. Therefore, it must be taken that the acceptable system without any form of appeal is one where the local manager decides the hours of overtime to be paid to an individual employee and it is that decision which is the properly payable amount of overtime. It follows from this analysis therefore, that there is no excess properly payable amount due to the Complainant. It is not for an adjudication officer to determine the hours worked by the Complainant versus the hours paid merely by endorsing a claim; that decision appears to lie solely with the local manager and that is the system which is in place in the employment. It would be more than unusual in any employment if an employee was to determine their own hours of work without any requirement for management to approve those hours where those hours are worked in excess of contracted hours and attract overtime. In this case a great deal of trust appears to operate around the system whereby the worker is expected to make an accurate return based on the requirements of the job, not only on the span of the hours used to complete deliveries. As I remarked at the hearing, this is a unique arrangement in my experience, and as I have pointed out here, it is does raise some questions about the method of recording of hours of work for the purposes of an Organisation of Working Time Act assessment. The communication of decisions to reject claims for overtime merits a review at the very least as does perhaps, the method for appealing to finality any local area decision. An issue dragging on over many years is unhealthy and time consuming in a negative way. Nonetheless, the observations around the system and communications do not lead to a conclusion that  a decision that the Complainant’s assessment of his own hours can realistically amount to  a properly payable wages unlawfully withheld.   Based on the analysis and the conclusion, this complaint is not well founded.

Employment Equality Act

For the reasons which I explained at the hearing, the Complainant clearly has a number of issues and grievances going back many, many years in this employment. Whether they are valid complaints or not is not a matter to decide outside of the validity or otherwise of the complaint of discrimination under the Employment Equality Act. It is clear that the Complainant has failed to establish even a stateable case of discrimination on grounds of civil status which the Respondent would be required to meet and justify or respond to. Based on the definition of a civil status as a protected ground, the complaints made by the Complainant are misconceived. 

CA-00062618-001 and 002 Employment Equality Act This complaint by Michael Gilmartin against An Post is not well founded.

CA-00062618-003 Payment of Wages Act 1991. This complaint by Michael Gilmartin against An Post is not well founded.

Wages withheld(overtime); Discrimination Civil Status