Worker

Employer

Worker

Employer

Anonymised Parties

A Worker

A Council

Representatives

 SIPTU

Local Government Management Agency (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 - 00001955

06/11/2023

On 6th of November 2023, the Union submitted details of a Dispute between their Member and the Council.

Both sides were represented at the hearing and both sides furnished detailed written submissions.

The background to this case is of a Dispute within live employment and relates to a number of unresolved issues.

The worker commenced employment with the Employer in November 1998 in the theatre Bar.

The Worker submits that she has carried out managerial duties since 2010/11 dealing with staff, recruitment, training, rostering, and dealing with stock and suppliers.

In 2013 the Worker and her colleagues sought an improvement in their terms and conditions in relation to Contracts, rates of pay and alignment with the rest of the Employer after years of pay disparity.    The Employer was in negotiations with SIPTU from 2013 right up until 2020 in this regard, but little progress was made.

On the 18th of May 2018 Mr F, Director of the Theatre emailed all theatre staff in relation to a proposed Organisational Review.     All staff contributed to the Review. The aim was to ensure a comprehensive restructuring of the Theatre.    Same was to be implemented but this never happened.    The Report on the Review has not been circulated notwithstanding the fact that it was to be implemented in Quarter I in 2019

The Employer wrote to the Worker on the 15th of November 2019 advising agreement had been reached to align the Theatre Assistant pay scale to the General Operative, Category I pay scale based on the hourly rate of pay from the 15th of November 2019.

However, a claim for backpay was requested by Ms J, SIPTU Shop Steward on behalf of the  Theatre staff on the 27th of November 2019.

A meeting was held on the 10th of January 2020. A further meeting was to be held on 28th February 2020. This meeting did not take place, and the matter was put no further due to the Covid 19 pandemic.

On the 20th of March 2020 Mr. F  Director of the Theatre emailed HR re payment of March hours due to the onset of the Covid -19 pandemic.   In this email he specifically refers to the Worker as “ our longest serving staff member and has managed the bar full-time here for years”

On the 1st of April 2020 the Chief Executive of the Employer issued a letter to all staff. This indicated that there would be a need for reassignment of staff due to the pandemic.    On the 3rd of April 2020 the Worker received a letter from Ms. E, HR to advise that she was being temporarily laid off.

After 18 months of lockdown the Worker was requested to return to work notwithstanding the fact that she had no offer of a contract.  

On the 12th of October 2021 Mr. F, Director Theatre emailed the Worker in relation to "Theatre Bar Manager role". This was the first offer of a return to work with a promise of the role of Bar Manager and a 40-hour week.

The Worker was advised that the regularisation of the Bar Manager role was in motion.  She returned to work, organised staff and dealt with suppliers. However, she was let go again four days later when the decision was made not to open the Bar.   Furthermore, she was never paid for these days.    It should be noted that the Bar was open and operating at this time. However, same was outsourced while the Worker remained on ‘lay off’ notwithstanding her 22 years’ service.

Mr A , SIPTU referred the various issues to WRC conciliation. A Webex Conciliation hearing was held on the 16th of November 2021. Following on from this the Worker emailed a list of issues to Mr. A SIPTU which was then sent to the Conciliation Service on the 29th of November 2021 and to the Employer Rep on 9th February 2022.  

 On the 11th of February 2022 Mr. F emailed the Worker inviting her back to work with no terms and conditions attached.   The worker was informed in this email that there had been no change in role/contract/title and that terms and conditions were as they were before the Employer had to close the Theatre in March 2020.

The Worker replied to this email on the same 16th February 2022 expressing her upset and discontent with the manner in which she was treated.  This email was completely at variance with the email from Mr F on the 12th of October 2021

 The WRC Conciliation took place on the 25th of March 2022 in relation to the Worker and another colleague who has since left the employment.    The issues raised included:- lack of contracts, the backdating of the General Operative rate of pay, no defined job title or terms and conditions, no financial recognition for management duties carried out, being treated differently to the rest of the Employers staff and receiving a lay off letter after 22 years.

At the hearing the Employer agreed to payment of loss of earnings.   However, their calculations were based on the lowest possible average for the shortest possible timeframe.

The Conciliation officer suggested taking an average of "hours worked" during the 13 weeks prior to the layoff.    The Employer states that they were advised to take an average of the "basic wage".

It is submitted that the Worker never had a "basic wage". She was always paid an hourly rate, and the hours varied each week.   Her hours were dependent on the shows booked in.   If a show or a run was cancelled she did not get paid.   This highlights the disparity between the employment status of the Theatre staff and Employers other staff.

The Employer in its calculations in respect of loss of earnings removed the overtime for the 13 weeks prior to lay off and did not include same when calculating the average hours worked.   It is submitted that the overtime was regular and recurring and should have been included in the calculation.

Furthermore, the Worker believed that the calculations should be extended to when she was offered a contract in January 2023 and not just to the end of the PUP. The Employer issued Spreadsheets of basic hours.

It is noteworthy that for the time the Worker was laid off and had not been offered a Contract, the Theatre Bar was operational, and outsourced to a private company.   The employer disputes this and says it was only offering click and collect service.

The retrospective issues (including backpay for the General Operative rate and for carrying out managerial duties) were not dealt with but the Conciliation Officer was to refer same to the Labour Court.   However, he retired soon after and the referral was not done. In any case the matter is now an individual case as the other colleague has since left the employment.

On the 27th of May 2022 the director issued an email to all staff asking them to indicate their availability for the upcoming summer and autumn seasons.   On the same date Human Resources issued an email to Mr. A, SIPTU with a calculation in relation to the PUP loss of earnings following the WRC Conciliation on the 25th of March 2022.

Mr. A. SIPTU sought the calculation to be extended from October 2021 for the full duration of layoff. He also questioned the workers role as Bar Manager.     HR  reverted with an amended figure to cover the entire duration of the lay off on 4th July 2022.    On the 13 th September 2022 the Worker raised a grievance in relation to the PUP payment and ongoing issues which were not dealt with. A meeting was held on the 17th of November 2022.

On the 6th of December 2022 the Worker emailed HR re PUP loss of earnings and other issues. This included amended figures for PUP and retrospective pay for the G/O rate for 2014 — 2019 and retrospective pay for managerial duties from 2011 — 2020.    HR responded to same on the 4th of January 2023.

On the 16th of January 2023 Mr M, Senior Executive Officer emailed the Worker with a final offer re all claims.    A draft settlement agreement and draft Contract for Bar Supervisor was attached to this offer. The Worker responded to same on the 31 st January with a spreadsheet re loss of earnings.   The employer sent a follow up email on 10th February 2023 looking for a decision.

Mr. D, SIPTU replied to same on 20th February 2023 advising all issues should be resolved prior to the Worker's return to work.

It is submitted that it was 25 years before the Worker was offered a CID and when same issued it was for a lesser role than the role she had been carrying out for 10 years. The role offered was a Supervisory role and not a Bar Manager role which the worker submits she was promised in October 2021 (by email from Mr. F).

On 24th April 2023 Ms. O, of SIPTU emailed the employer to advise that the Worker's case had been assigned to her and requested him to suggest a time he could take a call to discuss.    After many email reminders with no response the worker emailed HR on 7th June 2023 to discuss the matter. A meeting was held on the 20th of June 2023 with HR and the Worker's position was set out again with a view to securing an enhanced offer.

HR reverted on the 1 st August 2023 and came back with the exact same offer as set out on the 16th of January 2023.    In the email "it was outlined that return to work by the worker on the CID offered was without prejudice is conditional on above " i.e. the resolution of all financial issues.

 The worker put forward a further proposal to resolve all issues on the 4th of September 2023.   On  the 27th of September 2023 HR confirmed that the original offer stood.   The matter was referred to the WRC on the 6th of November 2023.

The workers calculation of the amount payable under the PUP is €31,929 up to the end of the PUP plus another €14,688 up to when the Contract was offered in December 2022, which gives a total of €49,608.

RETROSPECTION OF GENERAL OPERATIVE ROLE 2014 - 2019 Some progress was made on this by email of the 18th of February 2016 where the Employer issued a document with proposals re the Theatre in relation to the General Operative rate.    Nothing further occurred due to the onset of Covid-19, and the Worker being laid off. The Worker's calculation in relation to same is €31,632.01.

INCREASE OF €2.00 PER HOUR PAY FOR 9 YEARS FROM 2010 - 2019 RE MANAGERIAL DUTIES CARRIED OUT - same was requested at the meeting of the 17th of November 2022 as no one ever told the Worker the Bar Manger role was not her role. The calculation in relation to same is €36,696.

BACKPAYMENT OF SUNDAY PAY:- The issue of double time for Sundays was rectified in June 2014. The Employer wrote to the worker on the 16th of July 2015 with a revised final offer of €5,500 in compensation. This covered the period from 27ül November 1998 to 1 st June 2014. The Worker did not accept this offer and sought an enhanced offer.  The amount was €27,125.

REMOVAL FROM PENSION SCHEME PRI) AT END OF 2018:- At the end of 2018 the Worker was removed from the Pension Related Deductions (PRD). The ASC was introduced on the 1 st January 2019 and the Worker was deemed exempt. The Worker does not understand why after 22 years' service she has no pension.

Conclusion:

It is submitted that the Employer's calculation in relation to the PUP is unreasonable and not in the spirit of trying to come to a resolution, considering that the Worker does not have, or ever had, a 'basic wage', and is not reflective of her actual earnings based on hours worked.

It is further submitted that the retrospection of the General Operative rate to 2014 and requested and was never progressed by the Employer. It was completely ignored after the pandemic.

The worker is seeking to have the PUP loss of earnings calculated fairly, with the correct average figure and timeline.

In addition, the worker is seeking the backdating of the General Operative rate be honoured from 2014 — 2019 given that it was previously raised with and acknowledged by the Employer.

Finally, the worker is seeking compensation in relation to the many other issues faced by her which it is submitted were ignored in their entirety by the Employer. The Worker feels that there was a complete lack of respect shown to her.

The worker commenced employment with the employer as a casual member of Bar Staff in the theatre on 27th November 1998. The employment contract issued to her was an “if and when” contract i.e. a casual contract subject to her own availability and any hours offered by the employer  was dependent upon operational requirements with no guarantee of hours. 

 When the covid pandemic arose, the Employer advised all staff of the measures to be taken via email.  The twenty-one part-time casual staff in the Theatre were advised that they would be paid up to the end of the existing roster (to 29th March 2020) and after that they were to avail of the Pandemic Unemployment Benefit through the Department of Social Protection. 

On 3rd April 2020, the Head of HR issued a letter to the worker advising that due to the closure of the Theatre on 12th March 2020, the Employer was unable to offer her any hours and that she would be temporarily laid off.     On 22nd July 2020, a letter issued from  HR, regarding the continuation of the lay-off and support details.

On 24th September 2021 the Employer was notified that SIPTU had referred a dispute concerning “Members in the Theatre being treated differently to that of other Employer staff during the current pandemic”. A conciliation hearing took place via WebEx on 16th November 2021 with two employees of the Theatre.   At this meeting a number of other issues were raised outside of the covid pandemic issue.  The union was asked to clarify the number of employees it was representing and the exact nature of the complaint.

Following this first meeting, the Union submitted a number of issues i.e. 

(i)             Pandemic Unemployment Payment loss of earnings 

(ii)            Retrospection of General Operative Rate agreed in November 2019 for period 2014 – 2019. 

(iii)          An increase of €2.00 per hour for 9 years from 2010 – 2019 

(iv)          Back payment of Sunday pay 

A second conciliation hearing took place on 22nd March 2022 in Lansdowne House with the worker represented by SIPTU.  During this conciliation hearing it was agreed that the Employer on a without prejudice basis would make a payment to the worker regarding loss of earnings during the covid shut-down period.  This would be based on the average basic pay to her over the 13 weeks prior to the covid shutdown.  The difference between the pandemic unemployment payment that she received, and average basic pay would then be calculated.  

Following this meeting, the Employer reviewed the worker’s basic earnings over the last worked period of 13 weeks prior to lockdown and calculated the average basic earnings.   On 27th May 2022, an offer of €15,259 was made to the worker via her union representative for the period 01.04.2020 to 19.10.2021; a total of 81 weeks.  Calculations of the basis of this offer were included with the email.

The worker did not accept this offer and maintained that the offer should be based on basic pay plus  overtime and also that it should be extended to the period of October 2021 to cover the additional shut-down period of the Theatre.

The Employer did not accept the inclusion of overtime in the calculation but did offer a revised figure up to end of PUP payment in October 2021.   On 4th July 2022, a revised offer of €21,052.27 was made to her on a without prejudice basis. This offer was not accepted by the worker.

The Theatre manager issued emails inviting staff in the Theatre to notify him if they were available to return to work in the Theatre on: 7 February 2022, 27 May 2022 & 7 April 2023.   It was open to the worker to return to work at that stage if she so wished however, she sought a return on a different contractual basis.

On 13th September 2022, the Employer received a grievance from the worker.  This was acknowledged on 20th September 2022.  A meeting with the worker and her union representative was arranged for 17th November 2022.   The Employer met with the worker on 17th November 2022 in an attempt to resolve all the issues which were now the subject of a body of workers conciliation and an internal grievance.

At this meeting, the Employer confirmed the matters being complained of; confirmed the offers currently being made and stated that the other matters would be looked into.

At this meeting, the Employer offered the following to the worker on a Without Prejudice basis in an attempt to resolve all the issues raised:

PUP Loss of Earnings offer of €21,052.27 based on basic pay and up to October 2021

Permanent Wholetime Contract for role of Bar Supervisor at the maximum point on the Ganger PayScale i.e. €694.90 per week of 39 hours

Goodwill Ex Gratia Payment of €7,500 in settlement of all outstanding claims including the offer for Sunday payment which had not been accepted by the worker and a claim for retrospective pay. 

Commitment to examine the issue raised re removal from the Pension Scheme. The Employer informed her it was open to her to return on her existing contract or to return on the revised contract of Bar Supervisor which had been offered to her.

Neither option was availed of by the worker.   The worker informed HR that she had returned to work in October 2021 for a period of 4 days and was never paid for these.  She was advised to follow this up with her line manager.

A further meeting took place on 12th January 2023 with HR representatives, the worker and her union representative. The Employer requested a response to their offer of 17th November 2022.   Another meeting took place on 20th June 2023.    At this meeting, it was stated that the following was being sought by the worker:

PUP payment @ 40.5 hours to cover pandemic payment period and period to Jan. 2022 (€35,000 & €15,000)

Retrospection of GO rate agreed in November 2019 for period from 2014 to 2019 (€32,000)

Increase of €2.00 per hour from €12.75 for 9 years from 2010 – 2019 amounting to €33,696.

Following this meeting the Employer confirmed that it had considered the request of €115,696 from the worker and that the offer remained at that offered in November 2022. A response was requested.

There was some correspondence between the worker’s union representative and HR and a meeting with the Chief Executive was requested.  HR raised the matter with the Chief Executive who confirmed that the offer remained as outlined to the worker on 17th November 2022. The offers made have not been accepted and the worker has not returned to work.    An individual complaint was submitted to the WRC on 6th November 2023. 

The Employer’s Position

The impact of the Covid pandemic resulted in a cessation of all but the most essential of services across the state.  From the Employer’s perspective any staff involved in the provision of essential services continued to do so with strict adherence to the public health advice at the time; those who could work from home were facilitated at short notice to do so. However, the Theatre was closed in adherence to public health advice as it did not fall into either category.

When restrictions were easing, it was expected that the Theatre would reopen in October 2021 and staff, including the worker, were recalled for this purpose.  However, the planned reopening did not go ahead due to the restrictions being re-imposed.    This issue initially arose as a body of workers complaint from SIPTU regarding “Members in the Theatre being treated differently to that of other Employer staff during the current pandemic”.  It was also clear that of the 21 Theatre staff, the complaint initially encompassed two employees. 

At the first conciliation the worker raised a number of other complaints outside of this referral.   The Employer in good faith has attempted to resolve all these matters with her and has made offers on a without prejudice basis to enable her to return to work.  These have all been rejected. These Without Prejudice offers are now withdrawn by the Employer.

In relation to the loss of earnings during the covid period, the Employer made an offer based on the worker’s average basic earnings in the last 13 weeks worked prior to the shutdown of the Theatre  due to Covid in March 2020. The worker rejected this offer stating that her basic pay should also include a component for overtime.

It is not the norm in the Employer or the sector that Local Authorities pay employees for overtime when it is not worked.  This point has been considered by the Labour Court in LCR22398 who did not support the union’s contention that planned unworked overtime during the covid period (November 2020) should be paid to employees when the overtime was cancelled.   It was also a matter for consideration in LRC22568 which found that “there is no basis to compensate ..workers.. for work not undertaken”.  Similarly in this situation, overtime which was not worked cannot be considered in a claim for loss of earnings. 

 There is no agreement, precedence or practice that employees in the Employer or Local Government Sector are paid for non-worked overtime. The Employer cannot establish any basis by which employees should be compensated for work they have not undertaken particularly when the decision to close the Theatre was made on the basis of public health advice.

What is being sought by SIPTU is an acceptance that employees would receive compensation for any discretionary/notional overtime losses as in this instance. If such a complaint was upheld it wouldhave a significant impact for all employers in both the public and private sector who had to significantly curtail their activities because of the pandemic. 

On reviewing the complaints, it was evident that the worker routinely worked in the Theatre on a full-time basis. As per the terms of her contract, this was as per her own availability. 

However, on an exceptional basis, the Employer agreed to offer her a permanent contract as Bar Supervisor on a higher pay scale than her existing casual contract which is paid at General Operative rate.  The terms of this contract were not accepted by the worker.    This is despite the fact that the claim is a re-grading claim which is a cost increasing claim and prohibited under the public service agreement at the time of the claim and remains so under the 2023 agreement as per section 4.2.5 and 5.6.

The Labour Court in LCR21801 has previously considered re-grading claims in the sector and has consistently found that appointment in the sector can only be made through competition stating, “The established custom and practice for the filling of posts … is by competition”.

The Employer would refer to LCR22087 where the worker sought to be regraded on a personal to-holder basis outside of competition. The Labour Court found in favour of the Employer stating:

“…The Court is unable to uphold the Worker’s claim for appointment on a personal to-holder basis to the acting up position he held for some twelve years…This is consistent with established practice in the local government sector...”

Similarly, in LCR20634 relating to another Employer employee seeking to be regraded outside of competition, the Labour Court stated “… the re-grading of staff in Local Authorities is regulated by legal, public policy and collective agreement constraints. In this case the worker seeks to be re-graded on a personal basis outside of those constraints.

 The Court is aware that there is a significant number of Local Authority employees that find themselves in the same position as the Worker and who would seek comparable preferential treatment were the Court to recommend concession of this claim…accordingly does not recommend concession of the Workers claim.”

The Employer sees the current case as no different to those cases referenced above. Any regrading of the role in the Theatre can only result in appointment from panels in place following competition as is the practice in the sector.   It is clear from the early discussions that were held in relation to a possible "supervisory” post in the Theatre that the Employer had advised that should a post be approved that appointment would be by means of a recruitment competition.

In 2018 the Employer engaged with the union and Theatre staff in relation to payment and it was agreed that the Theatre staff would be paid at the General Operative rate.  The worker seeks to re-open this issue and seek retrospective pay which is not accepted by the Employer. 

Similarly, the worker seeks to re-open an issue in relation to Sunday working about which the Employer had previously offered a settlement figure to her in 2015 which was not accepted. The initial offer was based on €200 per year of service; this was increased to €250 and then a final revised figure of €5,500 total compensation was offered to her, but this was also rejected.

The Employer has been paying the worker appropriately in relation to Sunday working since the issue was brought to their attention in 2015.  Any claim about Sunday working is a matter for consideration under the Organisation of Working Time Act.

In relation to the complaint about being removed from the pension scheme in 2018 the Employer has confirmed that the worker has not been a member of the Superannuation Scheme.  Pension Related Deduction (PRD) was deducted from her salary from 2009 – 2018 which all public sector employees were obliged to pay. PRD was replaced by the Additional Superannuation Contribution (ASC) in 2019 which only applied to those who were members of a public service pension scheme.

 The Employer attempted to resolve the issues in hand, but no agreement has been reached as the offers made without prejudice were not accepted.

Conclusion

The Employer would assert that in the first instance this referral is inappropriate where the Employer was engaged in Conciliation through the WRC in relation to this matter and it could have been referred to the Court by SIPTU at any time if they so wished.   As far as the Employer is aware, they did not.

The Employer has attempted to resolve these issues locally without reaching any agreement. The Employer’s offers made on a without prejudice basis were not accepted and are now withdrawn.

The Employer does not believe unworked overtime should be compensated and ask the adjudicator to reject this complaint.

The claim is one of re-grading and as such is a cost increasing claim which is prohibited under the Public Service Agreement both at the time of the original complaint and currently.

In relation to the other matters raised, it is not reasonable to expect the Employer to open historic arrangements in relation to the general operative pay scale which was agreed with the unions at the time and implemented and in relation to Sunday pay.

The Employer has confirmed that the worker was not a member of the superannuation scheme and was never removed from the scheme.  PRD was deducted from her pay as required at the time and ceased when the deduction itself ceased. 

The Employer would ask the adjudicator to dismiss the current complaints based on the grounds provided above and find in favour of the employer

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.   I have examined this case in the context of exceptional circumstance’s due to its long-standing status and pronounced impasse. The Parties are stuck, the employment relationship is strained and both parties need a Recommendation to cement a respectful move forward within the employment relationship.

The worker stated that she considered that she had been treated with a total lack of respect and was humiliated by not being treated the same as any other employee in  the Council in terms of payment during the pandemic.   She stated that she had been invited back to work and had completed four days in preparation for opening the bar, was then told that the bar was not re-opening and was never paid for these four days.

The employer queried whether the worker had contacted her Line Manager regarding outstanding payment due.   She advised she had not.   With regard to returning to work the employer stated that the worker had been contacted by e-mail by her Line Manager on two occasions– Feb. 2022 and May 202 – re. her availability.

In considering the workers claim of compensation for loss of earnings loss of earnings during the covid period, the Employer made an offer based on the worker’s average basic earnings in the last 13 weeks worked prior to the shutdown of the Theatre  due to Covid in March 2020. The worker rejected this offer stating that her basic pay should also include a component for overtime. Having regard to all of the circumstances and precedent decisions cited, I am of the view that there is no basis to compensate the worker for Overtime not undertaken.   Accordingly, the claim arising from the non-payment of Overtime when the Bar closed in March 2020 as a result of the Covid 19 pandemic is rejected.   I note that the Employer has previously made an offer to the worker of  €21,052.27 in respect of loss of earnings in respect of the  PUP payment up to October 2021.

I recommend that the Employers offer in this regard be reinstated and accepted by the worker.

I note that it was agreed in 2019 that the Theatre staff would be paid at the General Operative rate effective from 15th of November 2019.  I also notethe employer’s position that there was no agreement in respect of the matter of backpay at the General Operative rate for those staff in respect of the period from 2014 to 2019 and I cannot make a recommendation in respect of this matter.    I also note the employer’s position in respect of the workers claim for back pay for a period of 9 years for which she is claiming is for carrying out Bar Manager duties.

I note that the employer has previously offered the worker a sum of €7,500 in compensation for all other matters including the offer for Sunday payment which had not been accepted by the worker and a claim for retrospective pay .   I recommend that this offer of compensation by the employer be increased to €10,000 and such offer be accepted by the worker.

As regards the claim in respect of the role of Bar Manager, I note the points made by the employer in respect of the Bar Manager role being a cost increasing claim and I also note that notwithstanding this the employer as a gesture of goodwill offered the worker a CID in the role of Bar Supervisor at the maximum point on the Ganger pay scale i.e. €694.90 per week of 39 hours.   I recommend that the worker accept this offer of a CID in the role of Bar Supervisor.

I note the workers position that she worked 4 days in October 2021 for which she was not paid, and I recommend that the employer pay the worker any outstanding wages in respect of these 4 days in relation to the hours worked.

I am recommending that the worker accept this recommendation in full and final settlement of this dispute and to confirm his acceptance to the employer within four weeks of the date of this determination.  On receipt of this I am recommending that the employer implement this recommendation no later than four weeks of the notification of the workers acceptance.